Roads: Young Drivers

The Earl of Dundee: asked Her Majesty's Government:
	What measures they propose to reduce the death rate among young drivers.

Lord Davies of Oldham: My Lords, the Government are very concerned about young driver fatalities and especially about evidence that a minority has a seriously unsafe attitude to the risks. We have strengthened the driving test and commissioned research on improving pre-driver education and the way to develop safe attitudes to driving among young people. We have looked carefully at a range of possible driving restrictions aimed at all young drivers but do not believe that they are the right answer.

The Earl of Dundee: My Lords, I thank the Minister for his reply. He may accept that the death rate among young qualified drivers would reduce through an increase in the number—now only 15 per cent—who go on to take Pass Plus. Does he agree that a good way to improve that percentage would be through a conditional offer: for example, that if a young driver takes Pass Plus, then his current two-year probationary period could be shortened?

Lord Davies of Oldham: My Lords, I am grateful to the noble Earl, who always takes a constructive attitude to these issues. He is right: that strategy is a way of improving driver education after passing the test. We have strengthened the driving test, as I mentioned, but it is also important that young drivers in particular realise that improvement to their driving can continue through the Pass Plus course. We also have sanctions against newly qualified drivers who break the law—when they achieve six points, they are banned from driving. I agree that we need to increase driver education beyond the passing of the test.

Baroness Hanham: My Lords, have the Government looked at what happens before the driving test is taken, and has any consideration been given to limiting the life of a provisional licence so that young drivers do not think that such a licence will continue for five or six years? Are the Government prepared to consider the provisional licence having a limited life that ends with a test being taken?

Lord Davies of Oldham: My Lords, again, I am grateful to the noble Baroness. That is a constructive suggestion, and we shall certainly look at it. I do not think that we have a great deal of evidence that people use the provisional licence to avoid the test. No doubt we all have anecdotal evidence of that, but it is not a great problem. As the House will recognise, a provisional-licence driver drives under severe restrictions. Therefore, there is an incentive to pass the test. However, the noble Baroness has drawn attention to the fact that our driving test is one of the most rigorous in the world, which is why people need to be satisfied that they have enough driving experience to pass it.

Lord Bradshaw: My Lords, is the Minister aware that, at the age of 17, there is an enormous incentive for people to get a car, partly due to the fact that, under this Government, bus and train fares have risen faster than they have for a long time? They are the highest in Europe. Has he any proposals in that respect?

Lord Davies of Oldham: My Lords, the noble Lord may not have noticed our assistance with fares for buses for young people in education or the increase in bus usage, certainly in London, where young people travel free. He should perhaps recognise that we are concerned to improve bus usage. Of course, fares are always in question when we still have more limited use of buses than we would wish, and I take on board his recommendations that we should do all that we can to improve bus usage. The Government are pleased to agree.

Lord Campbell-Savours: My Lords, is not the answer to be found in simply enforcing motor vehicle insurance?

Lord Davies of Oldham: My Lords, that goes some way towards the issue, because a driver's failure to have motor vehicle insurance is a serious misdemeanour. My noble friend will recognise that it is difficult to detect those driving without motor insurance until they have been involved in some incident attracting the attention of the police. The problem is that, for some, the temptation to drive without insurance still exists. There are significant penalties for not having motor insurance, and so there should be.

Baroness Oppenheim-Barnes: My Lords, is the Minister aware that this is one of the only countries in Europe where motorists do not have to display a valid insurance disc in the front of their car? If they did, all the excuses that he has just made would not be necessary.

Lord Davies of Oldham: My Lords, the noble Baroness has a point. Again, she will recognise that there is an enforcement problem. After all, the motor vehicle tax disc has had to be displayed for a long time, yet we all know that there is substantial evasion of that obligation. I take her point on board, however.

Baroness Finlay of Llandaff: My Lords, have the Government looked at the cost of the driving test and whether failing and having to repeat it acts as a deterrent to young people? That means that there is only one driver when a group goes out. When youngsters pile in the car, peer pressure distracts the driver. I am told by youngsters that the cost of the test and resits puts some off from attempting the test.

Lord Davies of Oldham: My Lords, the cost of the test is a factor, but it costs the normal driver in excess of £700 or £800 to learn to drive. The test itself is only a marginal element of those fees. I accept the noble Baroness's other point, however, that the issue is one of peer pressure. There is no doubt that driver accidents occur among young people because, when they are among their peers at a certain age, they act more recklessly than is good for them or their passengers. When they pass that medium age, peer pressure seems to work the other way—they become responsible drivers. Our problem is dealing with the former issue.

Railways: East Coast Main Line

Lord Wallace of Saltaire: asked Her Majesty's Government:
	Whether they will take steps to enable an increase in the capacity of the east coast main line.

Lord Davies of Oldham: My Lords, Network Rail is developing a route utilisation strategy for the east coast main line. This will determine, first, what is the most effective and efficient use of the existing capacity. It will then go on to consider what developments might be justified in the light of demand forecasts and affordability.

Lord Wallace of Saltaire: My Lords, I thank the noble Lord for that relatively opaque Answer. I am sure that he is familiar with the figures showing rising numbers of passengers using the east coast main line and rising freight use. There is also the expectation that the amount of freight being moved from the east coast ports to the north of England is likely to rise a good deal further. The schemes for increasing the capacity of the east coast main line are obvious. Some of them have been around for more than 50 years: the Welwyn viaduct, doubling north of Peterborough and now electrification between Leeds and York. Should not a Government who are committed to reducing road congestion invest in increasing rail capacity instead?

Lord Davies of Oldham: My Lords, I am sorry that the noble Lord considered my original Answer opaque. I was trying to clarify the issue. The route utilisation strategy will be the first comprehensive evaluation of the timetable for the east coast main line since electrification in 1990. We believe that there is considerable capacity for enhancing services. We want to see those services improved because there is no doubt that investment in rail is reflected in greatly increased passenger usage. I wanted to emphasise to the noble Lord that I really could not provide him with a greater carrot than the route utilisation strategy, which will set out to increase the capacity on that line.

Lord Rosser: My Lords, does my noble friend agree that the decision of the Office of Rail Regulation to award other route paths to a new operator has undermined the franchising process, first, by preventing GNER introducing the improved half-hourly service from London to Leeds that was provided under its franchise renewal agreement and, secondly, by leaving the financial terms of the franchising agreement at least partially holed below the water line? What action has been, or will be, taken to restore confidence in the integrity of the franchising process, including on the east coast main line, and to prevent any similar occurrence?

Lord Davies of Oldham: My Lords, my noble friend is knowledgeable about the issues and is very helpful. I emphasise that the decision to bring on to the line a new service was taken not by Ministers but by the Office of Rail Regulation. The new service, which will introduce direct trains from Sunderland to King's Cross, is an enhancement that should be applauded. My noble friend was right to point out that unresolved issues surround the enhancement of the service to Leeds. That is the point that I sought to address in my original Answer, and the route utilisation strategy will look at it. I do not agree that the Leeds service has been torpedoed as yet; nor do I think that any action has been taken that runs athwart the franchising process. GNER was well aware when it won the franchise of the possibility of other participants providing services.

Lord Mawhinney: My Lords, I declare an interest as chairman of the Peterborough Urban Regeneration Company. When will we see the route utilisation strategy document and when will its benefits become available to the people who use the stations on the east coast main line?

Lord Davies of Oldham: My Lords, it is intended to produce a consultation document from the summer, leading towards a conclusive position at the end of the year for effect in 2007. I recognise the interest of the people of Peterborough in the issue.

Lord Walton of Detchant: My Lords, being more interested in the service between King's Cross and Berwick-upon-Tweed than in that to Leeds, may I ask the Minister whether the decision to award a franchise other than that awarded to GNER for trains from Sunderland to King's Cross will interfere with the potential expansion of the GNER service to Edinburgh and the north?

Lord Davies of Oldham: My Lords, it will not interfere with existing services because that was the basis of the decision. With regard to any enhancement that GNER may have in mind, the route utilisation survey to be carried out will determine how many extra trains can be run on that line. We think that additional capacity will be revealed through the survey.

Lord Shutt of Greetland: My Lords, splendid though it may be to talk about increased capacity, I refer to present capacity and in particular to the difficulties that Sea Containers, the parent company of GNER, is reported to be in. Do the Government have contingency plans for the operating concession if any problems arise in that area?

Lord Davies of Oldham: My Lords, the problems of Sea Containers, the parent company of GNER, have been well documented in the press. The company is on record as saying that the problems have no effect on the viability of GNER and, at this point in time, we are working on that presumption. If the situation changed, there would be considerable concern. However, at present GNER is a viable company and is looking entirely secure. It won the franchise in a highly competitive battle and is doing well.

Lord Faulkner of Worcester: My Lords, has my noble friend seen the article in the latest issue of Modern Railways by the respected journalist Roger Ford? It is required reading for anybody who studies these matters. It states that the universal opinion among informed sources is that a competent timetabler, unfettered by post-privatisation timidity, could find paths between Peterborough and Doncaster for six new London-Leeds off-peak services. Does my noble friend agree that the more difficult question for the Government is the one alluded to by the noble Lord, Lord Walton, and my noble friend Lord Rosser—whether the extra capacity should all be given to GNER as a reward for its high premium payments or whether the Government believe in open access competition in the railways, in the way that the ORR does, of a sort that has not really existed since the railways were first regulated by Parliament in the middle of the 19th century?

Lord Davies of Oldham: My Lords, I am grateful to my noble friend for having quoted a magazine and an authority that we all hold dear as far as the railways are concerned. I agree with my noble friend that Roger Ford is an important commentator on the railways, and I am grateful that that authority indicates that successful timetabling can increase services on that line. Who should run those services is a matter for another day.

Cancer: Bowel

Baroness Hayman: asked Her Majesty's Government:
	What progress has been made with the implementation of the national bowel cancer screening programme.

Lord Warner: My Lords, the national bowel cancer screening programme was started in April 2006, as promised. Funding for 2006–07 is being transferred to the national cancer screening team in Sheffield. The kit supplier has been notified that the first order is for 100,000 kits. The first invitations to take tests should be sent out in July.

Baroness Hayman: My Lords, I am grateful to my noble friend for that reply and for the information that has now been given about the roll-out of this life-saving programme, over which there were concerns about delay. Can I press him about funding for future years? He will be aware that an announcement was made last year that £37.5 million would be allocated over two years for the full roll-out of the programme. Is that figure still a government commitment, and over what time frame will it now be available, given the inevitable delay that we now see?

Lord Warner: My Lords, the delay in starting the programme was extremely modest and has had no significant effect on the outcomes for individuals who take the test. We estimate that around £10 million will be spent on the first year—2006–07—of the national bowel cancer screening programme. My noble friend will know that funding decisions have not yet been made for future years. However, we are committed to ensuring that the necessary funding is available to see through the implementation of the programme. It has always been the case that this programme would take three years to roll out fully.

Baroness Gardner of Parkes: My Lords, how long will it take to get further kits? A first order of 100,000 kits is very small compared to the number of people who would benefit from screening. Will there be any delay in follow-up supplies?

Lord Warner: My Lords, I hope that there will be no delays. We have done what is necessary to get the scheme going. There are constraints on expanding the scheme, largely to do with training staff to operate the new procedures.

Baroness Barker: My Lords, given that the money promised for 2006–07 was delayed to the extent that work that should have started by now will not start until September, will the Minister confirm that the money for 2007–08 will be £25 million? When will that money be confirmed for expenditure?

Lord Warner: My Lords, I have just answered that to the best of my ability in response to my noble friend Lady Hayman. I have nothing to add.

Baroness Morgan of Drefelin: My Lords, the Government's announcement on 19 April was extremely welcome. We can learn from the experience of breast cancer that, when a national screening programme is launched, huge awareness can be created and many lives saved. The Government must be congratulated on that. The announcement says that five programme hubs will be established in the first year, along with 14 local screening centres. It also stated that to roll out the programme to the whole nation we would need 90 to 100 centres. Can the Minister inform the House of the milestones that there might be for years two and three to achieve full national coverage?

Lord Warner: My Lords, we will roll out the additional local screening centres. We anticipate that there will be 90 to 100 such centres, which will provide endoscopy services for those with positive test results. We will roll out 14 this year, as my noble friend rightly says, and will announce further programmes later in the year for roll-out during 2007–08.

Baroness Sharples: My Lords, I had colon cancer, so I should declare that interest. Is not the most vital thing that it should be diagnosed very early?

Lord Warner: My Lords, we are all pleased that the noble Baroness has overcome that problem. I assure her that we accept the point that she makes about early diagnosis; that is why we are rolling out the programme. It is one of the first of its kind in Europe and, when fully rolled out, it is expected to detect around 3,000 bowel cancers a year.

Lord Acton: My Lords, is my noble friend aware that NICE is due to assess the drug Avastin for the treatment in the National Health Service of bowel cancer? Can he do something to hurry the process up?

Lord Warner: My Lords, we have asked NICE to accelerate the appraisals of a number of cancer drugs, but they do not include the one that he mentioned. We are looking actively at the second phase of fast-tracking appraisals by NICE, and we will consider his point carefully.

Earl Howe: My Lords, did the Minister see that Sir Muir Gray, the director of the national screening programme, was reported this week as saying that the delay in introducing the bowel screening programme has been directly attributable to NHS reorganisation. If that assessment is correct, is it not an unacceptable and highly regrettable state of affairs?

Lord Warner: My Lords, I know of the allegation, but it is untrue.

Earl Ferrers: My Lords, is it in order for a Minister to refer to other people's indispositions across the Floor of the House?

Lord Warner: My Lords, I have no idea what the noble Earl is getting at.

Baroness Finlay of Llandaff: My Lords, how many additional staff have been trained to carry out colonoscopies? A positive result on screening without the ability to go into colonoscopy and the next stage of screening will cause enormous anguish to the person waiting, not knowing whether they have a bowel cancer sitting there.

Lord Warner: My Lords, the noble Baroness is quite right. To prepare for the bowel cancer screening programme we have built on the training set up as part of the NHS Cancer Plan. A national training programme has been established with three national and seven regional centres to train medical staff, GPs, nurses and other health professionals to carry out vital procedures for diagnosing bowel cancer. Based on current trends, the training programme is projected to deliver training for more than 1,500 endoscopies during the current year.

Terrorism: Liberation Tigers of Tamil Eelam

Lord Naseby: asked Her Majesty's Government:
	Whether, in the light of the recent suicide bomb attacks by the Liberation Tigers of Tamil Eelam—LTTE—in Sri Lanka, they will review the proscription of the LTTE in the United Kingdom and enforce it more rigorously.

Lord Bassam of Brighton: My Lords, we utterly condemn the suicide bombing in Colombo on 25 April. The Liberation Tigers of Tamil Eelam are a proscribed organisation under the Terrorism Act 2000. Proscription is a tough power which makes it illegal for an organisation to operate or fund-raise in the United Kingdom. Of course, enforcement of the law is a matter for the police and prosecuting authorities, and we expect them to take these issues extremely seriously.

Lord Naseby: My Lords, is the Minister aware that the Tamil Tigers are still recruiting child soldiers in north-east Sri Lanka; that the suicide bomber was a pregnant young woman; and that the Tamil Tigers still proclaim that they wish to have peace in that country? Meanwhile, the Minister says that proscription is tough on those proscribed. Is he aware, nevertheless, that there is continual money laundering in the United Kingdom; that illegal rallies take place under the flags of Tamil Eelam; that bogus charities are being set up; and that TTN is broadcasting Tamil Eelam propaganda in the UK? He may say that the issues are dealt with toughly and rest with other government bodies, but is he aware that the proscription is being flouted? Is it not the responsibility of the Home Office and the Government in general to make sure that proscription means what it is meant to mean and that it is not just flouted almost daily?

Lord Bassam of Brighton: My Lords, we believe that proscription is a tough power. It makes it illegal for organisations to operate in the United Kingdom. Membership of and fund-raising for a proscribed organisation constitute serious criminal offences. LTTE has been proscribed since March 2001—I know that because I took the order through your Lordships' House. We take these matters seriously. There are constant discussions between the Government and the enforcement authorities. What happened last year is a good example of these matters being dealt with exactly as they should be. The Tamil Rehabilitation Organisation, a charity, was closed down as a result of the police and the Charity Commission acting on evidence that funds were being channelled to LTTE.
	Clearly, the police and the prosecuting authorities can act only on the information that they have. I am extremely grateful to the noble Lord, who I know has great experience in the field, for drawing the matter further to the public's attention. That is a desirable thing to do, and we need to keep the pressure up.

Lord Dholakia: My Lords, I join the Minister in expressing sympathy for the large number of families affected by the atrocities in Sri Lanka. The noble Lord, Lord Naseby, asks an important question: is there any evidence that members of the LTTE in this country are involved in the type of activities for which the Home Secretary would require additional powers, or are existing powers sufficient to deal with them? Moreover, what sort of information is available to the police about the activities of such organisations?

Lord Bassam of Brighton: My Lords, the powers that we have are fit for the purpose. Where there is evidence, the prosecuting authorities will act. Indeed, they have acted in the past, as I have made plain to your Lordships' House. We can act only on information; we cannot act simply on supposition. The police must be fully involved in carrying out investigations and prosecutions.

Lord Howell of Guildford: My Lords, is the Minister aware that there is a lot of concern about the activities of this organisation? Is he aware—I am sure he is—that in the past 10 years there have been more suicide bombings in Sri Lanka, many of which are associated with this organisation, than anywhere else in the world? The number far exceeds that in the Israel/Palestine horror, for example. Is he also aware of the revolting practice of planting bombs on little children, giving them flowers to present to visiting politicians and dignitaries and then detonating the bomb so that it kills the child and the dignitary at once—the most sordid and sickening practice that one can possibly imagine? Will he therefore take to heart the representations that he is hearing today that something very firm needs to be done to prevent these people pursuing their activities in this country or, indeed, anywhere else?

Lord Bassam of Brighton: My Lords, the noble Lord makes several good points. I am completely at one with him. It is an appalling practice. It is a tragedy, and it is awful. Of course we take these matters seriously. We constantly discuss the issues with our opposite numbers in the Sri Lankan Government, and they make representations to us to act as firmly as we can where there is clear evidence of fund-raising to finance terrorist activities. That is obviously one of our priorities, and we work closely with the police to ensure that that work is carried through.

Lord Monson: My Lords, does the Minister agree that it is the greatest pity that the Terrorism Act 2006 made it a criminal offence for investigative journalists and other writers to interview people such as the Tamil Tigers in their camps, as William Dalrymple did so splendidly a few years ago, thereby allowing them to reveal to the world at large just how fanatical and ruthless such organisations are?

Lord Bassam of Brighton: My Lords, we have debated that issue at length. I am not aware that, as a result of the terrorism legislation that we have put in place, we have stopped investigative journalists carrying out their work. We are keen that journalists who have that information and knowledge pass it on to the authorities responsible for cracking down on terrorism.

Business

Lord Grocott: My Lords, with the leave of the House, immediately before the principal debate on the Government of Wales Bill—which looks a long way down the Order Paper, but I hope that it will not be too long before we get there—my noble friend Lord Bassam of Brighton will repeat the Statement on the deportation and removal of foreign national prisoners.

HBOS Group Reorganisation Bill

Lord Brabazon of Tara: My Lords, I beg to move that this Bill be now read a second time.
	Moved, That the Bill be now read a second time.—(Lord Brabazon of Tara.)
	On Question, Bill read a second time, and committed to an Unopposed Bill Committee.

Standing Orders (Public Business)

Baroness Amos: My Lords, I beg to move the Motion standing in my name on the Order Paper.
	Moved, That the Standing Orders relating to public business be amended as follows:
	With immediate effect:
	Standing Order 17 (Recall of the House)
	In paragraph (3), leave out "the Lord Chancellor or, in his absence,"
	New Standing Order 18A (Election of Lord Speaker)
	(1) The first election of the Lord Speaker shall be held no later than 30 June 2006. Thereafter elections shall be held (a) no more than five years after the previous election, or (b) within three months of the death of the Lord Speaker, or his giving notice of resignation, if sooner. If, after a date has been set in accordance with (a) or (b), a dissolution of Parliament is announced, the applicable deadline shall be extended to one month after the opening of the next Parliament.
	(2) All Members of the House shall be entitled to stand for election and to vote, save that (a) Lords who have not taken the Oath in the current Parliament, or who are on leave of absence, may not stand or vote and (b) a Lord who has been successful in two previous elections may not stand. Before they can stand, candidates shall require a proposer and a seconder, who must themselves be eligible to stand.
	(3) The election shall be conducted in accordance with arrangements made by the Clerk of the Parliaments. The Clerk of the Parliaments may refer any question concerning the propriety of the electoral process to the Committee for Privileges.
	(4) In the event of a tie between two or more candidates, the matter (if not resolved by the electoral arrangements adopted by the House) shall be decided by the drawing of lots.
	(5) The result of the election shall be subject to the approval of Her Majesty the Queen.
	(6) The Chairman of Committees may act during any vacancy in the office of Speaker.
	(7) The Lord Speaker may resign at any time by giving written notice to the Leader of the House.
	(8) If the House passes a Motion for an Address to Her Majesty seeking the Lord Speaker's removal from office, the Lord Speaker shall be deemed to have resigned.
	Standing Order 87 (Appellate and Appeal Committees)
	In paragraph (4), leave out "by the Lord Chancellor or, in his absence,"
	With effect from the election of a Lord Speaker under Standing Order 18A:
	Standing Order 17 (Recall of the House)
	In paragraph (1), leave out "If, during any adjournment of the House, the Lord Chancellor is satisfied that the public interest requires that the House should meet at a time earlier than that appointed" and insert "If, during any adjournment of the House, the Lord Speaker, after consultation with Her Majesty's Government, is satisfied that the public interest requires that the House should meet at a time earlier than that appointed"
	In paragraph (2), leave out "Lord Chancellor" and insert "Lord Speaker"
	Standing Order 18 (Speaker of the House)
	Leave out whole Standing Order and insert—
	18.—It is the duty of the Lord Speaker ordinarily to attend the Lords House of Parliament as Speaker of the House; and in case the Lord Speaker be absent, his place on the Woolsack or in the Chair may be taken either by a Deputy Speaker, authorised under the Great Seal from the Queen to supply that place, or by a Deputy Chairman, appointed by the House; and if neither a Deputy Speaker nor a Deputy Chairman be present, the Lords may then choose their own Speaker during that vacancy.
	Standing Order 19 (The Lord Chancellor)
	Leave out whole Standing Order
	Standing Order 52 (Joint Committee on Consolidation Bills)
	Leave out "on the recommendation of the Lord Chancellor"
	Standing Order 63 (Committees of the Whole House)
	Leave out "Whenever the House resolves itself into a Committee, the Lord Chancellor leaves the Woolsack and the Lord Chairman of Committees presides over the Committee" and insert "Whenever the House resolves itself into a Committee, the Lord Speaker leaves the Woolsack and he or the Lord Chairman of Committees presides over the Committee from the Chair"
	Standing Order 72 (Notifications)
	Leave out "Lord Chancellor" and insert "Lord Speaker"
	Standing Order 76 (Proceedings upon opening the Parliament)
	In paragraph (1), leave out "Lord Chancellor" and insert "Lord Speaker"
	In paragraph (2), leave out "Lord Chancellor" and insert "Lord Speaker"
	Standing Order 79 (Claims of Peerage)
	In paragraph (2), leave out "Lord Chancellor" and insert "Lord Speaker"—(Baroness Amos.)

On Question, Motion agreed to.

Electoral Administration Bill

Baroness Ashton of Upholland: I beg to move the Motion standing in my name on the Order Paper.
	Moved, That the Bill be recommitted to a Committee of the Whole House in respect of amendments dealing with the regulation of loans to, and corresponding transactions concerning, political parties.—(Baroness Ashton of Upholland.)

On Question, Motion agreed to.

Wireless Telegraphy Bill [HL]

Lord Falconer of Thoroton: My Lords, I beg to move that this Bill be now read a second time. The Bill gives effect to the Law Commission's proposal that legislation regulating the management of the radio spectrum should be consolidated into a single Act. The Bill is solely a consolidation measure, which will bring together provisions from six statutes. These are: the Wireless Telegraphy Act 1949, the Marine, &c, Broadcasting (Offences) Act 1967, Part II of the Wireless Telegraphy Act 1967, Part VI of the Telecommunications Act 1984, the Wireless Telegraphy Act 1998 and Part 2 of the Communications Act 2003.
	Amendments made by a pre-consolidation order under the 2003 Act are also to be taken into account in the Bill. The Bill is the first consolidation measure to be introduced for some time. This is regrettable, but the Bill will, I hope, shortly be followed by others. Consolidation is an important part of the Government's better regulation agenda. It makes the law easier to use and understand. It improves the statute book and saves time and money for those who have to consult it. I am grateful to all those at the Law Commission and the Department of Trade and Industry who have worked on the Wireless Telegraphy Bill and to those who responded to the consultation on its content.
	Ofcom, which will be one of the prime users of the legislation, welcomes the Bill. If your Lordships are content to give the Bill a Second Reading, it will be referred to the Joint Committee on consolidation Bills in the usual way.
	Moved, That the Bill be now read a second time.—(Lord Falconer of Thoroton.)
	On Question, Bill read a second time, and committed to the Joint Committee on Consolidation Bills.

Dynamic Demand Appliances Bill [HL]

Lord Redesdale: My Lords, I understand that no amendments have been set down to this Bill and that no noble Lord has indicated a wish to move a manuscript amendment or to speak in Committee. Therefore, unless any noble Lord objects, I beg to move that the order of commitment be discharged.
	Moved, That the order of commitment be discharged.—(Lord Redesdale.)

On Question, Motion agreed to.

Prisoners: Deportation

Lord Bassam of Brighton: My Lords, with the leave of the House, I shall now repeat a Statement made by my right honourable friend the Home Secretary in another place. The Statement is as follows:
	"With permission, Mr Speaker, I would like to make a Statement on the deportation and removal of foreign national prisoners. I will update the House on our progress in considering the cases which, I reported last week, had been released without proper consideration, and I will set out the facts in relation to the reports on foreign national prisoners and the removal of failed asylum seekers which my department received over a period of time. I will also set out the action taken by my department in response to those reports, including the robust procedures put in place to deal with the very specific issue of consideration of deportation pre-release.
	"Finally, I will set out, as promised a week ago, the conclusions I have come to on reforms necessary to the policy framework in which deportations are considered and dealt with. Let me begin by confirming, as set out to the House last week, that, as a result of decisions taken earlier this year, including improved management structures, more resources and tightened procedures, we have for the past month had a system to ensure that further cases cannot be missed. This situation will continue to improve as we move over time, as a matter of routine, to consider for deportation all potential cases a year before they leave prison, or at the beginning of the sentence, if that is less.
	"Last Friday I wrote to you, Mr Speaker, to set out our progress in dealing with those cases released without prior consideration of deportation. I would now like to update the House on the figures I published then. As of yesterday evening, consideration of all the most serious 79 cases had been completed, with deportation action having been commenced in respect of 70. The remaining nine are cases where deportation action is not being pursued, in accordance with current policy criteria. Thirty-two of those 70 are now accounted for and either deported or within our control. The Immigration Service and police are continuing priority operations to bring the remainder under control. I will not give further details at this stage as the House will appreciate that my first priority is the efficacy of these operations.
	"As I made clear in last Friday's letter, our second priority for consideration is the 103 cases for which, as we stated to the Public Accounts Committee, the type of offence was unknown. Data on these cases is now complete and I can say that there are 11 of these cases where the original offence was within our category of 'more serious offences'. Consideration for deportation of all but one of these cases has now been completed and deportation action has commenced in respect of seven of them. Since their release none of these individuals has committed any of the more serious further offences.
	"This deals with all the cases where individuals were originally convicted of more serious offences. Of the 1,023 cases in total, consideration has commenced in 574 cases, of which 554 have been completed, with deportation action being pursued in 446 cases. Perhaps I should add that almost all of the cases which have so far been given prominence in the media in recent days are not among those on which I have been reporting to the House, though some do indeed raise important issues of policy.
	"Whatever the historic failings, I want to thank all of those engaged in the very intensive work which has continued throughout the bank holiday weekend. This has included a major police incident room in Portsmouth, a casework operation in the Immigration and Nationality Directorate (IND) in Croydon, work by prison and probation staff, and joint police and IND operations to detain offenders decided for deportation. There is a very high operational commitment to this work, for which I want to express appreciation.
	"From the outset I have acknowledged that there has been a systemic failure within the Home Office, which I regret and for which I have apologised. For example, it was only in 1999 that records began to be kept in this area at all. However, there have been a number of allegations of inaction by the Home Office, in a range of areas over a period, which have portrayed what I believe to be a false position. I want now to set the record straight.
	"There are three distinct issues. The first is the broad issue of the rising number of foreign nationals in our prisons, from 5,587 in 2000 to almost 10,000 in 2005, and the policy framework for their deportation. The second is the removal of failed asylum seekers and our action to reach the so-called 'tipping point'. The third is the specific operational question of the backlog of cases. The first issue, the overall approach to foreign-national prisoners and their deportation, was raised over a period by respective Chief Inspectors of Prisons. In summary, they have mainly made the argument that the Government were not paying sufficient attention to foreign-national prisoners or their human rights, particularly in relation to detention after the end of their sentence.
	"The Home Office has sought to deal with these concerns by a variety of means, which, among other things, led to the deportation of about 3,000 foreign-national prisoners in 2004 and 2005, a figure to compare with a total foreign-national prisoner population of 9,690 in 2005. Anne Owers acknowledged some progress on this broad issue in her report of 2004–05.
	"The second issue, the removal of failed asylum seekers, was the main focus of the NAO report of July 2005, entitled Returning Failed Asylum Seekers. The overall conclusion of the report was that the prompt departure or removal of an unsuccessful asylum applicant should be prioritised, a conclusion which squared exactly with the Home Office prioritisation of asylum in general and, in particular, action to reach the point where more asylum seekers were leaving the country than there were unfounded new applications. This was indeed achieved in February this year and was widely welcomed.
	"The NAO report also noted that action on criminal cases was not being initiated early enough to allow preparations for removal to be made pre-release from prison, though it acknowledged the increase in resources already directed to dealing with these cases. The Home Office immediately responded to the NAO comment. Additional staffing of 90 caseworkers to come on stream from January 2006 was identified, as was a further £2.7 million of resource to come online from 1 April 2006. Immigration Service staff were placed in four London prisons, and surgeries were held in 60 prisons; a weekly report on the foreign national prisoner population was initiated; and new arrangements were made to move foreign nationals who had completed their sentences from prison to immigration detention facilities at the rate of around 300 a month. In addition management arrangements were strengthened.
	"This NAO report was the basis for the Public Accounts Committee evidence session on 26 October 2005, which also focused on the removal of failed asylum seekers. I have already acknowledged the important role played by the Public Accounts Committee in focusing attention upon these matters. I also very much welcome the announcement that the Home Affairs Committee will extend its inquiry to cover this matter. The House may recall that I first raised publicly my concern over the broad policy issues raised by the increase in the number of foreign-national prisoners in evidence to the Home Affairs Committee on 25 October last year.
	"Following the PAC hearing, the Home Office set about collecting and cleansing the data in order that we could report properly to the committee and the public on the true size and nature of the backlog, and take the appropriate action. The first report was made to the PAC in November. However, closer analysis revealed that the backlog was larger than previously thought and, crucially, that serious offenders were among the backlog. This was reported to me at the end of March 2006, together with plans to re-check the information before it was put into the public domain, to begin casework on this backlog, and to work with prisons and probation on the serious cases.
	"The PAC published its report on 14 March. It did address the issue of foreign-national prisoners in the body of its report, but it was not in a position to draw firm conclusions or to make firm recommendations.
	"The rise in the number of foreign nationals in our prisons and the overall policy framework for dealing with issues of their deportation is a longstanding concern on which detailed work has been proceeding for some months. I would now like to report my preliminary conclusions to the House. These are complex and difficult issues. I will shortly publish, before the end of May, a consultation paper with specific, detailed proposals from the beginning to the end of the process. The guiding principle will be that foreign nationals guilty of criminality should expect to be deported. To achieve this I will consult in the following areas. First, the data which identifies an individual as a foreign national must be captured at the beginning of the criminal justice system, including at the point of arrest and as the case proceeds through the courts. At each stage there should be sanctions against individuals who give false information on nationality or indeed no information at all.
	"Secondly, it is important to ensure that the issue of deportation is raised throughout the sentencing process. Following recommendations from the Sentencing Advisory Panel, the Sentencing Guidelines Council will shortly be publishing draft guidelines to set clear criteria according to which judges should make deportation recommendations when sentencing.
	"Thirdly, we need to deport prisoners at an earlier stage in their sentences. Ideally, prisoners should serve their sentences in full in their home countries, which also assists rehabilitation. The UK currently has prisoner transfer agreements with 90 countries; we have recently ratified an agreement with India and others are awaiting ratification. Within the EU, we are strongly supporting the efforts of the Austrian presidency to secure a directive which will enable the repatriation of prisoners within the EU without requiring the consent of the prisoner. In addition, the Criminal Justice Act 2003 introduced arrangements to consider whether prisoners should be deported before the end of the sentence, and we will consult upon proposals to enable that to happen earlier in a prisoner's sentence.
	"Fourthly, I want to make it clear that the Government not only intend to ensure that the current system operates effectively but also seek after consultation to extend the categories of offenders who are considered for deportation. We will therefore publish proposals to consider for deportation a wider range of offenders.
	"I want to state clearly that, where deportation can properly be considered, the clear presumption should be that deportation will follow unless there are special circumstances why it cannot. We will consult on whether this presumption should be made statutory through primary legislation. Such a presumption would include: all criminals sentenced to imprisonment, all those convicted for an offence listed in an order under Section 72 of the Nationality, Immigration and Asylum Act 2002, all those on the sex offenders register, repeat offenders, and, of course, all those recommended for deportation by the sentencing judge. We believe that there is a strong case for extending these proposals to any individual convicted of an imprisonable offence, whether or not a sentence of imprisonment was actually given, and we will consult on that.
	"These proposals would replace the current practice of considering for deportation only non-EEA nationals with a sentence of 12 months or more, EEA nationals with a sentence of 24 months or more, cases where the individual has three lesser convictions in a five-year period, and all cases where the sentencing judge has recommended deportation.
	"In relation to our policy framework, I have already said that we are now ensuring that all deportation decisions are being taken before an individual is released. That will continue but I will also consult on the following steps to ensure effective implementation of deportation and removal decisions: full use of the less burdensome process of administrative removal rather than deportation in eligible cases—that is, where individuals have no or limited leave to remain; more effective procedures in relation to psychiatric hospitals; a new power in primary legislation to enable us to detain an individual pending consideration of whether they should be deported or removed as a result of their criminal conviction; amending primary legislation so that deportation appeals, save for those raising asylum or human rights issues that are not clearly unfounded are heard after the individual has been deported from the UK; and the introduction of an automatic bar on return for all those who are subject to administrative removal due to criminality, as is already the case with those who are deported.
	"Finally, I should add that I will also consult on proposals to achieve a more coherent approach to taking criminality into account in decisions on who is allowed into the country, who is allowed to stay, who is granted settlement, and who can acquire British citizenship.
	"These are significant proposals which, as I said earlier, we have been preparing for some months. They will, I am sure, also be controversial but I hope that unlike with some previous legislation in this area we can rely on the full-hearted support of both the main opposition parties in ensuring that foreign nationals who commit crimes are deported rapidly to the countries from which they come.
	"This has been an unedifying episode for all of us in the Home Office who are charged with the protection of the public. But I said that I would stay and put the situation right. I have set out the results of the intensive work being done by the agencies to deal with the outstanding cases. I have set out steps taken to improve our systems on foreign national prisoners, including robust procedures which now mean that the appropriate processes are in place, and I have set out my proposals to deport more offenders, more quickly".
	My Lords, that concludes the Statement.

Baroness Anelay of St Johns: My Lords, I thank the Minister for repeating the Statement made earlier today by his right honourable friend. I respond to it with a feeling of regret about the shambles over which the Home Secretary has presided. I made it clear on a previous occasion, quite recently, that the Home Secretary has been regarded with a broad degree of respect including, certainly, by me. The sorry tale of the failure to stem the tide of the release of foreign prisoners into our community when they should have been considered for deportation before their release is a stain on his career.
	Some 735 of the 1,023 foreign prisoners were released between February 1999 and the time when Mr Clarke became Home Secretary. But 288 more foreign criminals were released after August 2005—that is, after the Home Secretary explicitly knew there was a problem. He has acknowledged that as a fact. The rate of release therefore accelerated on his watch.
	I have several questions for the Minister, but first I make it clear that we on these Benches will support any action that addresses these problems effectively. If that includes new legislation, so be it, but that legislation must be thoroughly and constructively scrutinised. That is the role of this House. To be a mere rubber stamp for executive authority would demean us all.
	The Government have said that they intend to create a presumption of deportation for foreign criminals. We support that intention, but it is right that the Government should be asked now, as they have been over the past week, why they have not properly used the powers that they already have. The 1971 Immigration Act gives the Home Secretary explicit powers to deport any non-British citizen; Section 3(5) says that he may do so,
	"if he deems deportation to be conducive to the public good".
	Why have the Government not made full and effective use of that?
	The Minister referred to the draft guidelines that will shortly be published by the Sentencing Guidelines Council, following recommendations made to it by the Sentencing Advisory Panel. However, when the Sentencing Advisory Council reported last year, it pointed out that judicial recommendations for deportation may be ignored by the Home Secretary in as many as 25 per cent of cases. What guarantee do we have that any of the changes announced by the Government today will improve the Home Secretary's rate of approval of the judge's recommendations to deport?
	I now turn to the length of time that it took the Government to alert the police to this problem. The Home Secretary and his predecessors were warned several times by Her Majesty's Inspectorate of Prisons and by some police forces of the growing magnitude of the problem of foreign criminals being released rather than deported. The Home Secretary himself was warned again by the National Audit Office on 14 July last year. At least 400 foreign criminals were identified in the Home Office's first submission to the Public Accounts Committee who could have been arrested and deported.
	If the Minister can give us a good reason today why the Government were unable to act 10 months ago, the question has to be: why did the Government not act one month ago, when they had a full list available? Crucially, why did the Home Secretary tell the press about the problem before he told the police, giving more than 1,000 criminals the chance to disappear before the police could launch their attempts to catch them?
	The Government have still not given us the information that they promised us last week, which was the full number of crimes committed by the 1,023 foreign criminals since their release. When will that information be given? Moreover, the Home Secretary has not told us how many crimes were committed by the 288 criminals released after he was explicitly told about the problem. When will that information be given?
	Last Friday, the Home Secretary said in his letter to the Speaker that he considered 79 of the foreign offenders to be serious. He tells us today that deportation has been started on 70 of them, but of course only 32 of those 70 have so far been located. That is indeed troubling. The Minister says that, of the 1,023 foreign criminals who are at issue here, deportation is being pursued in 446 cases. Will the Minister tell us today how many of those 446 are now within the control of the police?
	We must now all be concerned that even this 1,000 may be just the tip of the iceberg. Almost every day that passes, we hear of a new failure. Some have been rehearsed in the press today, but I shall not ask questions on those matters for fear of falling foul of sub judice rules. Our overriding concern on these Benches is that there must be effective and appropriate management of the deportation of foreign prisoners. Revelations over the past week have put at risk public confidence in the ability of the Home Secretary to achieve that. Whatever the reasons behind the rolling rhetoric of the Home Secretary in his Statement, only one thing really matters—that the Government now get a grip on this policy issue for the safety of the public. The British public deserve nothing less.

Lord Dholakia: My Lords, I, too, thank the Minister for repeating this Statement in your Lordships' House. I listened to Prime Minister's Question Time in the other place. There is a temptation to apportion blame to one or the other party as to who should have done what and when. This Statement is far too serious and I shall avoid that temptation. The demand for the Home Secretary's resignation has been fully aired in the newspapers and in the other place. We know that there are local elections tomorrow, and public appetite will not be satisfied until a resolution is reached on this subject.
	It comes as no surprise to many of us that such a disaster was bound to come to light. We have repeatedly drawn the Government's attention to the unacceptably high number of prisoners, to the procedures that created a high backlog of asylum seekers and to immigration procedures that are easy to enact but difficult to follow up. All this has resulted in our penal institutions becoming unmanageable. Is it any surprise, therefore, that foreign nationals or British citizens feature so prominently in repeat offences? Whether or not the functions of the Home Office need to be reorganised will have to be examined at some stage. We now require urgent action to deal with violent criminals who seem to have escaped the safety net. Public confidence has been destroyed since this foreign prisoners' deportation issue came to light.
	I am therefore grateful for the Statement. We shall scrutinise the new figures with the attention that they deserve. We already know from the figures released last Friday that they beg as many questions as the answer. As for the announcement of new legislation for the revision of the rules, let us be clear that the present fiasco did not arise because of an absence of legislation, because of a lack of rules—an 86-page document from the Prison Service came to light yesterday, which provides policy guidance on considering the deportation of non-British offenders— or because of a lack of powers enjoyed by the Home Secretary. Indeed, the Home Secretary has very wide discretion already to remove anyone who is deemed not to be conducive to the public good.
	There is already a presumption in law that if you are convicted for an imprisonable offence you are liable for deportation. If a court recommends deportation of an offender, he or she should automatically be detained at the end of their sentence. According to the early release scheme introduced for foreign offenders, the assumption rests on automatic deportation. I ask the Minister to confirm that.
	The Government have introduced 36 new laws and 1,000 offences in the law and order area since 1997. The Minister must acknowledge that placing yet more pressure on an overburdened criminal justice system, with new rules and laws devised under the panic of the present fiasco, might prove to be little more than a cosmetic solution. We will look positively at any measures necessary to deport those who should and can be deported more quickly than at present, but not if those measures prove on further consideration to be a knee-jerk reaction to help the Government out of this self-inflicted political problem.
	Our prisons, as I said, are heavily crowded, the probation service is demoralised, the Government are at loggerheads from time to time with the judiciary and reoffending rates are now among the highest in the western world. This Government have presided over lamentably low conviction rates for some of the most serious crimes imaginable, such as rape. The Government should start getting a grip on the mismanagement of the whole criminal justice system, rather than indulging in rushing into new legislation.
	On one point I shall certainly come to the aid of the Home Secretary—on those seeking to make political capital out of the tragic case of the murder of PC Sharon Beshenivsky. That is playing a most dangerous game. The present crisis centres on the fact that hundreds of offenders have not been considered for deportation at all when they should have been. By contrast, the case of Mr Jamal, suspected of playing a part in the murder of this PC, is of a very different order, since consideration of his deportation did take place, even though we now know that the decision taken had tragic consequences. In stirring this pot, they appear to be inching perilously close to active scaremongering.
	Our focus will remain on the serial incompetence of a system in which the basic rules to examine each and every case for deportation simply were not operating at all. It is incompetence for which the Government should take political responsibility, and I note that the Home Secretary has apologised. However, he has said nothing today to restore that confidence which will come about only when the system is adequately monitored and the results of the 1,000-plus cases are known.
	We need to know at this stage where within the system we failed. What happens to those whose job it is to regulate the system? Can the Minister throw some light on that? Overall, it is a sorry state of affairs with very tragic consequences.

Lord Bassam of Brighton: My Lords, I am grateful for the thanks of the noble Baroness and the noble Lord for the Home Secretary's Statement. I am also grateful to the noble Baroness for her commitment—I think that I heard her say this—to any action to support legislation that might be necessary to ensure that the problems and difficulties with which we have been grappling can be dealt with in the future in a more accurate, targeted and functional way. I am most grateful for that support.
	The noble Baroness is, of course, right to say that we should never rubber-stamp legislation and that we should properly scrutinise matters which are brought before your Lordships' House to deal with some of the profound problems that these issues involve. That is quite right and your Lordships' House has a very good record on pursuing matters in that way.
	I am also grateful to the noble Lord, Lord Dholakia, for his interest and concern, although, having heard what he said, I gained the impression that he and his party were rather less keen on supporting legislation. I believe that he argued against what he envisaged—legislation which might act as a cosmetic solution. Having heard the Home Secretary's Statement today, I should have thought that it could hardly be argued that it is full of cosmetic solutions. The Home Secretary has thought long and hard about the additional measures which may well be necessary to tackle some of the problems that this issue has highlighted. I do not think that we should underestimate the importance of that point. Of course, the noble Lord is right to say that we should not be drawn into knee-jerk reactions, but I do not think that it is accurate or fair to say that all of this is simply the product of an overworked and overcrowded prison system, because that is not the case. These problems have been around for a long time. The Government have grappled with them over that period and previous governments have had to deal with similar issues.
	The noble Baroness, Lady Anelay, as ever, was assiduous in asking her questions and I shall try to deal with some of them this afternoon. The noble Baroness quite properly asked why we had not made full use of the deportation powers contained in the Immigration Act 1971, and referred to Section 3. Successive administrations have made use of available deportation powers. The Secretary of State has discretion in considering when deportation is conducive and what grounds should be considered. In today's Statement, my right honourable friend the Home Secretary signalled his intention to seek deportation for a wider group of criminal offences. I gave details of the numbers that are currently under consideration.
	The noble Baroness also asked what guarantees there were that new powers will help convert court recommendations into actual deportations. That is a very important question. The proposals set out in the Statement will provide a better procedural and legislative framework in which to deport a higher number of people whose actions make deportation the appropriate course. That has to be right and the way forward. I am sure that the noble Baroness will want to support that.
	The noble Lord, Lord Dholakia, asked whether there was already a presumption for deportation where imprisonable offences were committed. Existing legislation provides that a court may recommend deportation where an imprisonable offence is committed. This is different from the proposal that deportations shall be the presumed outcome. I would like to see from the noble Lord and the noble Lord's Benches a signature to that new commitment of the Government, because it is an important one. We believe that presumption should be there. I hope the noble Lord's party adds its support to that because that will help us to strengthen the current situation and enable us to secure support for that proposition in Parliament.
	I willingly concede that there have been errors and omissions along the way, but it would be wrong to presume that the Government do not take these matters very seriously. We do take them seriously. We have acted swiftly when these matters have been drawn through the process and when questions have been asked. A great deal of work has been undertaken; the Statement makes that clear. It is clear to me, too, that we should give all our active support and consideration to the Immigration and Nationality Directorate, the police, and also the prison and probation services, to ensure that this work is carried through and that these deportations—where they are right and proper—are given full effect.

Lord Foulkes of Cumnock: My Lords, does my noble friend not detect just a whiff of hypocrisy from the other side, where the people most prominent in calling for the Home Secretary's blood are those who have constantly, time and again, watered down the legislation that might have made this kind of situation impossible, and who, when anyone is being deported, are the first to join committees to stop that deportation? Why does he accept the assurance of the noble Baroness, who speaks on behalf of the Conservatives, when time and again, in this House, they have followed the Liberal Democrats through the Lobby watering down legislation? How will he discuss this with the Conservatives, with the Liberal Democrats and above all with the Cross Benches to make sure that on this occasion the Government's proposal is enacted speedily and effectively to deal with this problem?

Lord Bassam of Brighton: My Lords, I am grateful to the noble Lord, Lord Foulkes, for his intervention, because he touches on an important point. The noble Baroness, Lady Anelay, as an advocate for her party, shows great integrity and is a noble Baroness of her word. I have a great deal of respect for her. We have worked closely over a number of years to ensure the safe passage on to the statute book of many important measures. But as the noble Lord, Lord Foulkes, says, we have often brought important proposals before noble Lords, which deserve the support of the House, and yet we have been turned over on these things. It has made our job in government tougher. That is precisely why I welcome what the noble Baroness, Lady Anelay, had to say, because I got the distinct impression that she would give a very fair wind indeed to practical propositions. I hope that the Front Bench opposite sticks to that. Clearly the same cannot exactly be said for the noble Lord, Lord Dholakia, and his party. They recognise the problem. Whether they will help us to grapple with the solutions remains to be seen. There is a question mark.
	I repeat what I said earlier: I do not believe that your Lordships' House should be used as a rubber stamp. It is where, quite properly, scrutiny takes place. However, it has to be accepted that there are difficult decisions to be made when you bring forward legislation and some legislation may not always seem to be the most palatable. But that legislation can be essential if we are to achieve our policy objectives.

Lord Waddington: My Lords, I hope the Minister will, on reflection, agree with me that the matter identified by the noble Lord, Lord Foulkes, is certainly not the problem with which we are faced today. Nor is this just a matter of an official failure to identify and consider for removal foreign criminals reaching the end of their sentence. The position, surely, is that under this Government there has been, to all intents and purposes, a complete collapse of immigration control. Net legal immigration now runs at well over 300,000 a year, enough to populate a new city the size of Birmingham every five years, and hundreds of thousands of people are estimated to be here illegally. This has led to a massive increase in the number of foreigners in our gaols. If that is not the cause, what is the cause of this dramatic increase in the number of foreigners in our gaols? There are some 11,700 at present—one in eight of the entire prison population. The Prison Service and the Immigration and Nationality Directorate have simply not been able to cope. That is why we are in this position today. It is not officials who destroyed immigration control; it is this Government. It is not official incompetence, but government policy that is responsible for criminals, murderers and rapists having been released onto our streets. Unless we get some recognition of that, we are not going to get very far.

Lord Bassam of Brighton: My Lords, normally I would respond to a question, but I did not hear a question.

Lord Ramsbotham: My Lords, like many other noble Lords, I welcome the Statement, but I do so with considerable regret. Had advice that was given by a number of people—myself included—been taken earlier, I do not believe that it would be necessary to introduce these sorts of measures under these sorts of circumstances. I am sure that we all regret that a situation should have arisen where both the Home Secretary—many of us respect the current holder of that office for the vision he has shown regarding what he wants to do with the management of offenders—and the Home Office, one of the great offices of state, should be dragged through the mire and criticised so publicly and viciously for something that was an accident waiting to happen. It was not only an accident waiting to happen regarding immigration but regarding many other affairs, thanks to a consistent failure over many years to tackle the problem of poor management within that office.
	My interest as Her Majesty's Chief Inspector of Prisons is that I raised this issue in my annual report of 2001. I made three specific recommendations to the Home Office at that time. First, I said that this problem would not be solved unless someone was made responsible and accountable for the treatment and conditions of all foreign nationals in prisons and that until that happened, no one could be held to account and no proper, consistent action could be taken. Secondly, I drew attention to the needs of foreign national prisoners, which included language problems and treatment. Nothing happened about that.

Noble Lords: Question!

Lord Ramsbotham: My Lords, thirdly, I drew attention to the fact that too many foreign national prisoners were awaiting deportation and at the end of their sentence they then went to an immigration centre. When I inspected the immigration centres, I found that the staff were extremely concerned that prisoners were coming into organisations that were there to handle asylum seekers and immigration detainees, and they did not want prisoners in their midst.

Lord Campbell-Savours: My Lords, is this not an abuse of our procedures? Will someone from the Front Bench take the initiative on this?

Lord Davies of Oldham: My Lords, the noble Lord is perfectly in order to make comments. Of course, the Minister does not have to reply unless a question is asked. We expect comments to be brief and within about two to three minutes.

Lord Ramsbotham: My Lords, I thank the noble Lord for that. All I want to do is draw attention to these things, because we have here an attempt to solve one problem, which is one problem among many. I hope that the Home Secretary, in tackling this problem, will realise that the same sort of solution is needed in many other aspects of the criminal justice system as a whole. It is no good just plugging one gap and not tackling them all. I hope therefore that this will act as a wake-up call, because I am sure that if it does the Home Secretary will find that there is cross-party, Cross-Bench and every other support for any intention to put this system right.

Lord Campbell-Savours: My Lords, this is an abuse of our procedures.

Lord Bassam of Brighton: My Lords, I am in some difficulty, because the noble Lord has not really perfected a question for me. I pay tribute to him for his work as Her Majesty's Chief Inspector of Prisons, and I am aware of his important report. I made reference in repeating the Statement to the fact that traditionally chief inspectors of prisons have drawn to the attention of the Home Secretary, as the Minister responsible, welfare issues relating to foreign prisoners. This Statement is related to welfare but concentrates mostly on improving our ability to secure deportations where people have committed serious crimes and have served a period of imprisonment that has come to a close. I am grateful to the noble Lord for his commentary, but there is nothing further I can add other than to say that I will ensure that his important remarks are forwarded to the Home Secretary in order that they can be taken account of in the round when looking at this whole policy area.

Lord Corbett of Castle Vale: My Lords, can the Minister confirm, for the benefit of the Daily Mail, that it was not because of fears for the safety of Mustaf Jama, a convicted felon wanted for his suspected involvement in the murder of WPC Beshenivsky, that he was not returned to his native Somalia, but because the militia in control of the airport had made it clear that they would fire on any plane that tried to land there? Can the Minister also confirm—I do not minimise the failures of the Home Office, as my noble friend will acknowledge—that the proportion of UK nationals convicted of very serious criminal offences who reoffend is higher than the reoffending rate among foreign nationals who have been in our prisons?

Lord Bassam of Brighton: My Lords, I think that is the case. I do not have those figures to hand, but it is an important element of the debate. It would be wrong of me to become embroiled in a debate about individual cases, although the particular case to which the noble Lord and many others, including large chunks of the media today, have drawn our attention is of grave concern. It raises, as I said in the Statement, important areas of policy and it will no doubt feed into the wider debate on this issue. There are countries to which it is almost impossible to return nationals, because of the state of unrest within their boundaries. Somalia is a highly unstable country that falls very neatly into that category.

Lord Thomas of Gresford: My Lords, will the noble Lord confirm that victims of people who have been released without being deported and who reoffend will be properly compensated? If they are not, the Home Secretary will have opened himself up to an action for misfeasance in a public office. He has come before us in sackcloth and ashes, apologising for the unedifying shambles in the Home Office, and will have to pay the price unless the state steps in.

Lord Bassam of Brighton: My Lords, this Government have made many improvements to the way in which victims are regarded, treated and looked after within the criminal justice system. This is a very important question. Where it is right, compensation will be actively considered.

Lord Elystan-Morgan: My Lords, within the past week or so the Home Office has stated that it is unable to set out the number of cases where there was a judicial recommendation of deportation. Will the Minister kindly confirm that this is the case and, if so, how does that come about when such data are undoubtedly collected at circuit, if not national, level? Furthermore, if no figures for deportation recommendations are available, it would appear to be inevitable that there are no data about those cases where a judge considered deportation and specifically concluded that no such recommendation should be made. Although it may well be that the totality of these figures does not change the general situation, certainly it may mean that from that figure of 1,023 there may be hundreds of cases where there is no real and acute danger to the public.

Lord Bassam of Brighton: My Lords, the noble Lord's final statement is quite likely to be accurate. I cannot today give the noble Lord the number of cases where a judge recommended deportation. Throughout this there has been an absence of accurate data. The situation that we inherited—I do not use that inheritance as an excuse for what has happened in recent weeks—was not a happy one. No figures for foreign national prisoners were accurately in place, as I understand it, until the late 1990s, although I have data that relate from 1997 through to the present. There has been an absence of accurate data collection and clearly we need to improve that. Some improvements have undoubtedly been made in recent years. We now have a much clearer picture of the nature of the problem and, as a consequence, some of the issues are there to be dealt with and resolved.

Lord Kinnock: My Lords, will the Minister not simply convey to his colleagues in the Home Office the importance of the views expressed by the noble Lord, Lord Ramsbotham, but also emphasise the wisdom of what the noble Lord said in 2001, as he reminded us, and the totality of his remarks, including those made today about the current Home Secretary? Secondly, does he accept that the circumstances that gave rise to this Statement make all sensible people both miserable and anxious and should propel them into seeking answers, not trying to invent slogans? Thirdly, can the Minister think of anyone who has a more personal strength of character or personal commitment to resolving the long-term weaknesses in the system than the current Secretary of State for Home Affairs? Fourthly, will he join me in condemning those who, in these circumstances, seek to plant and harvest public anxieties by the exaggeration of their language, regardless of which House of Parliament they happen to be in and regardless of whether they are on the streets or elsewhere, or what previously illustrious office they may have held?

Lord Bassam of Brighton: My Lords, my noble friend Lord Kinnock speaks with great wisdom. I said very clearly to the noble Lord, Lord Ramsbotham, that I would convey his comments in full to the Home Secretary because they are very important. I know that his 2001 report was received well at the time, in the sense that the issues with which he was grappling were very important. I think that measures have been fairly taken to improve the position of foreign national prisoners within the Prison Service.
	My noble friend Lord Kinnock is absolutely right to say that we should focus on solutions to the problems that have been highlighted. We do not seek to make political capital from the failures of past governments. There is no point in doing that; we have to deal with what is in front of us now. Of course, my noble friend is absolutely right to say that the Home Secretary, by the very nature of the way in which he has dealt with this, has demonstrated his integrity and commitment to ensuring that we solve the systemic problems that have been identified through some of the failures that have been revealed over the past 10 days. It is to his credit that he went public, very clearly setting out on record the nature of some of those issues.
	I am sure that all Members of your Lordships' House will want to condemn those who whip up fears and scare stories and seek to use issues like this to target and to antagonise relations with asylum seekers and quite legitimate immigrants to our country. I refer particularly to the BNP and the way in which it manipulates and twists the facts to whip up fears and anxieties about those who have only recently come to our shores.

Baroness D'Souza: My Lords, there is a need for urgent and robust action. Will the Minister also assure the House that it is precisely at times like these that one needs to maintain standards in policy and practice on deportation? The Statement mentioned failed asylum seekers and the forthcoming report from the Lords EU Home Affairs Sub-Committee. That report will be published next week and is to be called Illegal migrants: proposals for a common EU returns policy. It examines the practices in EU countries and comes up with fair, decent and effective policies and practices to deal with failed asylum seekers. The report will be debated together with the economic migrants report on Thursday 11 May and, if accepted, will provide standards to which EU countries may, in time, adhere.

Lord Bassam of Brighton: My Lords, I made reference in the Statement to the value of working with our international colleagues, particularly across the EU, to find common solutions. We welcome that and look forward to receiving the report to which the noble Baroness has referred.

Lord Carlile of Berriew: My Lords, the Minister will know that there is plenty of evidence that Crown Court judges regard making recommendations for deportation as pointless, because they know that the Home Office will not do anything about it. Will the Government ensure that, with whatever reforms now take place, the judges, through the Judicial Studies Board and the Department for Constitutional Affairs, are included in the consultations and given full information as to how the orders they make will be implemented in the future? Will the Government bear in mind that judges, on the whole, react much more favourably to making orders which mean what they say, whether in relation to deportation or sentencing, rather than those which are something of a fiction?

Lord Bassam of Brighton: My Lords, I pay tribute to the noble Lord for his important work in this field. However, I think he is in danger of misrepresenting the position. As I said in the Statement, there have been more than 3,000 deportations of foreign national prisoners in the past two years alone. Clearly, there have been management failures. The Home Secretary is well aware of that, and the measures offered today, which will be consulted on extensively—of course the Judicial Studies Board will be part of that—will make a significant improvement to processes and ensure that we have a more timely arrangement for securing these deportations when sentences due to be served in UK prisons are complete.

Lord Maginnis of Drumglass: My Lords—

Lord Davies of Oldham: My Lords, our 20 minutes are up. We have had nine speakers, which is the most we can expect to get in 20 minutes.

Government of Wales Bill

Lord Evans of Temple Guiting: My Lords, I beg to move that the House do now again resolve itself into Committee on this Bill.

Moved accordingly, and, on Question, Motion agreed to.
	House in Committee accordingly.
	[The DEPUTY CHAIRMAN OF COMMITTEES (Baroness Thomas of Walliswood) in the Chair.]
	Clauses 33 to 48 agreed to.
	Clause 49 [Counsel General]:

Lord Hunt of Wirral: moved Amendment No. 42:
	Page 29, line 28, at end insert—
	"( ) No recommendation for the appointment of a person as the Counsel General may be made by the First Minister without prior consultation with the Attorney General.
	( ) No person may be recommended for appointment as the Counsel General unless he is—
	(a) a member of the Bar of England and Wales of at least ten years' standing, or
	(b) a solicitor of the Supreme Court of at least ten years' standing.
	( ) The functions of the Counsel General shall be exercised by him independently of any other person."

Lord Hunt of Wirral: We move to the position of the Counsel General in Clause 49 but, as this is my first intervention on the Bill, I will set this and subsequent amendments in context.
	As my noble friend Lord Roberts of Conwy knows, it is no secret that I argued strongly against devolution, both as Secretary of State and subsequently. I genuinely believed that my experience demonstrated that Wales was well and effectively served, in the best interests of all its people, by having full representation in the UK Government at the highest level. Since the narrow referendum result that ushered in devolution, however, we have all come to terms with the inevitable changes. In now seeking to improve the Bill, I recognise that there have been teething troubles and worse, but the principality has unquestionably recently been enjoying a tremendous renaissance.
	From the Millennium Stadium, which now seems to be hosting the FA cup final indefinitely, the Welsh National Opera and the Millennium Centre, to the fantastic new series of "Doctor Who"—filmed in Wales by BBC Wales, using Welsh talent but entrancing an entire nation—it is an exciting phase in the history of Wales. Of course, the Assembly Government cannot be cited as the single cause of all this, but they are part of this new era and have an integral role to play in the future of Wales. We must, however, be hard-headed about that future. The devolution settlement across the United Kingdom is very uneven, and it is hard to see it settling down for any length of time until all the constituent parts of the union are palpably being treated fairly.
	Aspects of each devolutionary settlement give cause for concern. I shall deal with the Ram doctrine and the royal prerogative shortly, but I turn first to the crucial question of the role of the senior law officers in the structure of government in Wales. On paper, the Counsel General is neither fish nor fowl. The role is a curious amalgam of poacher and gamekeeper, both offering friendly and courteous advice to members of the Assembly Government and watching over their shoulders to ensure that they behave themselves. I hope to hear from the Minister how he reconciles these two approaches.
	There is no mention of a Counsel General in the Government of Wales Act 1998. The role as I understand it has been to act as a senior legal adviser to the Assembly. There is obviously no objection to the position receiving statutory recognition. However, there is a markedly different system in Scotland, and there is an element of confusion about the future role of the Counsel General in Wales. The Counsel General is expressly stated to be a member of the Welsh Government. The assumption seems to be that the Counsel General will continue to act as a law officer to the Welsh Executive. Paragraph 2.9 of the White Paper states:
	"His or her principal role will be to advise the Welsh Assembly Ministers on legal matters relating to the exercise of their devolved functions".
	However, a number of specific references in the Bill confer a different role: initiating challenges if the Assembly or Ministers act outside their powers. These two roles may sound similar, but the duties owed in the two roles go in opposite directions. As legal adviser to Ministers, the Counsel General owes them a duty to try to keep them out of trouble. As the person responsible for initiating challenge, the Counsel General's duty is, where appropriate, to get them into trouble. It is almost the difference between prosecution and defence.
	I hope that the Minister will be able to clarify this, but whichever of the above-mentioned roles the Counsel General is to fill, and all the more so if he is to perform both at the same time, he needs to be a lawyer—I would venture to say a lawyer of considerable stature—yet there is no mention in the Bill of a need for him to have any legal qualification or experience. I hope that the Minister will comment on that aspect, too.
	It may be said that all these different roles can be combined in a person of outstanding experience, ability and integrity, and that it all depends on the quality of the individual. Perhaps so, but should the legislation not then say more about the kind of individual who might be considered suitable for the post?
	It is essential to ensure that the appointment process is transparent and that the individual appointed possesses, and is seen to possess, independence as well as impartiality and integrity. I beg to move.

Lord Thomas of Gresford: We on these Benches support the amendment and seek clarification on whether the Counsel General is now to be a political appointment, as are the Solicitor-General and the Lord Advocate in Scotland. I particularly like the third proposed subsection of the amendment, which states:
	"The functions of the Counsel General shall be exercised by him independently of any other person".
	The Counsel General who was appointed and served for a long time in that position in the Welsh Assembly certainly acted independently, advising the Presiding Officer and Members of their powers. He has retired but has not, as I understand it, been replaced. Consequently, there is a wide gap in the legal department of the Welsh Assembly that has to be filled. It is right that there should be a lawyer who advises on the powers of the Assembly. I hope that he will not be a political person; I hope that he can give independent advice.

Lord Carlile of Berriew: I support what has just been said by my noble friend Lord Thomas of Gresford and the noble Lord, Lord Hunt. The history of this appointment is not altogether happy. As has been said, Mr Roddick, who was the first Counsel General, regarded himself, and was widely regarded, as being entirely independent. Those who have discussed his appointment with Mr Roddick know that there were uncomfortable moments for him, for he did not always know where the fountainhead of his independence lay. It was by him and in his courage in the job that that independence was established.
	After his retirement, there was what can be described only as an unseemly mess. There was a completely independent trawl for a new Counsel General. Recruitment consultants were used in the normal Civil Service way and the Civil Service Commission carried out the interviews. I believe that the final interviews were chaired by the First Civil Service Commissioner, who is a respected Member of this House. An appointment was provisionally made, of an extremely distinguished lawyer who everyone who knows the Welsh or the legal world would have regarded as an exemplary, apolitical appointment. For reasons that have never been adequately explained, it appears that the present First Minister rejected that appointment and, as a result, there has been no Counsel General since then.
	It is clear from what occurred that the present First Minister, at least, wished and presumably wishes that the Counsel General should, in effect, be like the Solicitor-General for Scotland or Lord Advocate; that is, a political appointment, a member of the Government in political terms and, as happens conventionally with Scottish law officers, someone who becomes a Member of your Lordships' House. To many of us, that is not acceptable. We can do better in Wales. Someone like the person who the Civil Service Commission wished to be appointed would be an outstanding public servant, and would ensure that the Welsh Assembly Government's activities were lawful and that the Bill, when it becomes an Act, is fully carried out. There will be real concern, even in political circles in Wales that, if it is to be merely a political appointment, the quality of that appointment will suffer and the government of Wales will suffer as a result. This is therefore an extremely serious issue on which real clarification is required from the Front Bench.

Lord Elystan-Morgan: I have some sympathy with the amendments. The office of Counsel General has suffered a sea change within the past few years. When the Assembly was first created, the role of the Counsel General could probably have been said to be akin to that of a conscientious clerk to a county council in the old days when such a clerk was a lawyer and intended to act as the solicitor, as it were, for that body. With the development of the Assembly, and particularly with the developments enshrined in the Bill, it is entirely proper that the role of the Counsel General should be regarded as more comparable to the role of an Attorney-General than to that of a clerk to a county council.
	I agree completely with what has been said: it is essential that the Counsel General is a person of the highest legal standing and, indeed, of considerable experience. I do not comment on what the noble Lord, Lord Carlile, said about the difficulties relating to appointment. I have shared chambers with both Mr Roddick, whom I regard as a person of the highest distinction, and Mr Elias—the candidate whose candidature caused such controversy—again, a person of the utmost probity and the first rank of legal experience and expertise.
	Nevertheless, if the role is to be comparable with that of an Attorney-General, one may very well have to accept that it is a quasi-legal appointment. That does not damn that appointment for all time. Attorneys-General perform two roles: they are members of a government and political creatures, but they also exercise quasi-judicial functions. I believe that in all parties over the last 100 years one has found, almost invariably, an adherence to such standards. I had the very splendid experience in this Chamber of being an understudy to the late Lord Elwyn-Jones. I cannot imagine anybody who portrayed those qualities of judicial independence as well as he did. I would accept, therefore, that the development of the Assembly justifies a change in the role of the Counsel General. It is inevitable that there should be some prospect of that person being a political appointment. I am not entirely happy with the idea that he should be a Minister; I would prefer him to be independent of that system.
	However, I doubt very much whether one can have it both ways. One has to accept, therefore, his political involvement. What I unfortunately do not accept is that there should be consultation with the Attorney-General before an appointment is made. The Assembly is given great powers and much trust is to be invested in it. It would be insulting and wholly unnecessary for there to be a necessity for that consultation.

Lord Richard: When the Assembly was constituted as a corporate body, it was quite clear that one needed one Counsel General, but it became clear after a while that he had to perform two distinct roles. One role clearly was that he was there to advise the Assembly Government, who, however one looked at the issue and wrapped it up, existed as a government. The other role was advising the parliamentary Assembly and particularly the Presiding Officer.
	Marrying those two together was, to say the least, rather difficult and required a man of considerable standing to pull it off. Now that we are reconstituting the basis of the Assembly, and in effect saying that there should be a clear distinction between the Assembly Government on one hand and the Assembly on the other, the role of the Counsel General has to change. He cannot ride both horses and straddle that gap any more. He should be there primarily—I imagine that this is what the Government have in mind; certainly it is what I had in mind—to advise the Government on such matters as they require advice on, in exactly the same way as the Attorney-General and the Solicitor-General here would advise the Government on how they should proceed.
	It is right that the Presiding Officer's department should have its own legal staff and access to its own legal advice. I see nothing wrong with that. Advising the Assembly Government in the way in which the Government at Westminster or the Scottish parliamentary Government are broadly advised would therefore seem perfectly acceptable in Wales, provided that there is at the same time a growth in the legal advice available to the Presiding Officer and Members of the Assembly. I hope that we can proceed on that basis. But I am bound to say I share the view of the noble Lord, Lord Elystan-Morgan, that, if ever there were matters for the Assembly, this would seem to be one of them. It is not a matter for the Attorney-General.

Lord Evans of Temple Guiting: I begin by warmly welcoming the noble Lord, Lord Hunt of Wirral, to our discussions. Several issues have been raised that are very interesting and, to be absolutely frank, completely new to me. We will read and reflect on the comments of noble Lords, particularly those of the noble Lord, Lord Carlile of Berriew, and do whatever needs to be done.
	As we have heard, Amendment No. 42 seeks to ensure that the Attorney-General is consulted on the appointment of the Counsel General. It also places a condition on the recruitment of the Counsel General to ensure that the office-holder must have been either a member of the Bar or a solicitor of the Supreme Court for at least 10 years. The recommendation for the appointment of the Counsel General is properly a matter for the Welsh Assembly Government, with the approval of the Assembly. The Government agree with the noble Lord, Lord Elystan-Morgan, and my noble friend Lord Richard that the Attorney-General should not be consulted on the appointment.
	The Counsel General will be a member of, and the legal adviser to, the Welsh Assembly Government. He or she will be their representative in the courts and, in this capacity, the Counsel General and the Attorney-General could conceivably find themselves representing opposite sides of a devolution issue. We believe that the limitations which the noble Lord seeks to place on the criteria for the selection of the office-holder are too restrictive. Given the nature of the office of Counsel General, it is inconceivable that the First Minister would recommend for appointment a person who did not have a high degree of legal expertise and experience. To impose a specific set of qualifications would be unnecessary and an undue constraint on the First Minister's discretion. What if the best candidate had nine years' experience rather than 10? Furthermore, very specific levels of legal qualification, which may be appropriate for a member of the judiciary, are not necessarily so appropriate for someone who will be a member of the Welsh Assembly Government as well as their legal adviser. The First Minister may wish to take other experience into account, such as experience in constitutional matters generally.
	As laid out in the Bill, the appointment will be made by Her Majesty on the recommendation of the First Minister. However, the First Minister must have the Assembly's agreement to the recommendation. The role of the Counsel General has no effect on the role or status of the UK law officers who were consulted on the drafting of the Bill. It might be helpful if I place on record exactly what the Counsel General's role will be—to provide authoritative legal advice to the Welsh Assembly Government; to represent the Welsh Assembly Government in the courts generally; to institute proceedings for the determination of devolution issues and to defend any such proceedings instituted by the Attorney-General; to receive notice of cases involving devolution issues; to monitor proposed Assembly measures and, following a yes vote in a referendum, Assembly Bills for compliance with legislative competence; to refer doubtful cases to the Supreme Court, when it is established, but to the Judicial Committee of the Privy Council in the mean time; and to meet UK law officers and law officers of the other devolved Administrations.
	I hope that, with that explanation, the noble Lord will feel able to withdraw his amendment.

Lord Hunt of Wirral: This has been an interesting debate. I am particularly grateful to the noble Lords, Lord Thomas of Gresford and Lord Carlile, for filling in a bit of the political background and stressing the points which were aired early in this debate. I found the advice of the noble Lord, Lord Richard, very useful in setting some of the background and the role that he sees the Counsel General playing, as was the insight and knowledge of the legal profession in Wales given by the noble Lord, Lord Elystan-Morgan.
	I am grateful to the Minister for agreeing to ponder some of the points, notably those made by the noble Lord, Lord Carlile. I am still unsure how this role will proceed, particularly as regards challenges. I recognise that one could find the Counsel General on one side and the Attorney-General on the other. I should like to reflect on some of the points made by the Minister. In particular, I am grateful to him for setting out in such detail the role of the Counsel General and the functions that he will perform. Against that background, this has been a useful discussion. My noble friend and I would like to consider carefully the points made by Members of the Committee. In the mean time, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Clause 49 agreed to.
	Clause 50 agreed to.
	Clause 51 [Limit on number of Ministers]:

Lord Roberts of Conwy: moved Amendment No. 43:
	Leave out Clause 51 and insert the following new Clause—
	"LIMIT ON NUMBER OF MINISTERS
	(1) Not more than eight persons are to hold the office of Welsh Minister appointed under section 48 at any time.
	(2) Not more than three persons are to hold the office of Deputy Welsh Minister at any time."

Lord Roberts of Conwy: The amendment is self-explanatory. It seeks to limit the number of Welsh Ministers to eight and the number of Deputy Welsh Ministers to three, rather than the current provision to limit the total number of both posts to 12. It is a minor change and a probing new clause. I also seek to probe various issues relating to this provision.
	There are many reasons in favour of a limitation on the number of Ministers, not least the example of what has happened in Scotland. The number of Scottish Ministers has exploded from the original five to the current 22. I know that the responsibilities of the Scottish Parliament are considerably more extensive than those of the Welsh Assembly. Nevertheless, 22 Ministers is substantial. It might be described as a kind of overgrowth. It has obviously led to increased cost and complexity for possibly questionable benefit. In Wales, with its Assembly membership confined to 60, an inappropriately large number of Ministers and Deputy Ministers would, I think we would all agree, also reduce the number of Welsh Assembly Members available to hold those Ministers to account.
	I am glad to see that this Bill does not repeat the mistake made in the Scottish Act of placing no limit on the number of Ministers. As it is obviously so much harder to reduce the number of Ministers once they have been appointed than to prevent them applying in the first place, it is sensible to have that limiting provision from the start.
	The current provision makes no distinction between Ministers and Deputy Ministers, which is necessary given that there is some confusion over the precise role of the new deputies. Perhaps the Minister would like to take this opportunity to explain exactly what need he envisages Deputy Ministers fulfilling. What is to be their role? Are they the equivalent of Ministers of State or Under-Secretaries of State in the United Kingdom Government? In addition, how will the National Assembly cope with the increased workload that will result from the implementation of Part 3 and especially Part 4?
	We have heard in the other place that the Assembly will sit for more weeks and more hours in the week and that that should allow Assembly Members adequately to scrutinise the legislation and perform their functions. If the Minister has views to express on the new Assembly and its workload, we would be grateful to hear them. I beg to move.

Lord Livsey of Talgarth: We feel that this amendment is too restrictive and prescriptive. Eight Ministers does not encompass the functions of the Assembly. In Part 1 of Schedule 5 it is interesting to see all the fields that the Welsh Assembly covers; it lists as many as 20. That is approaching the kind of figure that the noble Lord, Lord Roberts, said existed in Scotland. It is clear that some of the headings of the fields of Assembly responsibility could be combined.
	Agriculture, fisheries, forestry and rural development are clearly one responsibility, as at present. On the other hand, field two is ancient monuments and historic buildings. I do not think that any Minister would wish to be described like that; I am not sure whether he would have a very long shelf life. Other areas are, understandably, combined at the moment: culture and the Welsh language; economic development; education and training. The environment is a field in itself. The list runs through the fields of health, highways and transport, housing, local government, social welfare, and tourism, which are all very important. There is also, for example, water and flood defences, and town and country planning. When you start to work your way through those functions, you see that eight Ministers is an inadequate number.
	We agree with the wording of Clause 51, which lays down that there will be 12 Ministers. That seems sensible, particularly in the fields that I have just listed.

Lord Evans of Temple Guiting: As we have heard, Amendment No. 43 would limit the number of Ministers to eight and Deputy Ministers to three. The Government agree that a limit is important to the effective function of the Assembly and that there should be a limit on the size of the payroll vote. The Bill sets a statutory limit in Clause 51 so there is no danger of the sort of explosion mentioned by the noble Lord, Lord Roberts, that has happened in Scotland. We agree with the noble Lord, Lord Livsey, that the amendment is too restrictive. We do not believe that the limit on the number of Ministers and Deputy Ministers needs to be reduced. Moreover, the Government believe that it is not necessary to limit the First Minister's discretion over the balance of Ministers and Deputy Ministers.
	The limit prescribed in the Bill—a combined total of no more than 12 Welsh Ministers and Deputy Welsh Ministers—is consistent with the current situation. There are currently eight Cabinet Ministers in addition to the First Minister, and four Deputy Ministers.
	In the House of Commons, there are currently 89 Ministers, including Whips, and 51 Parliamentary Private Secretaries. This represents around 21.7 per cent of the total membership of the Commons. The limit that we have proposed for the Assembly, taken together with the First Minister and the Counsel General, represents only a fractionally greater proportion of the Assembly if the Counsel General is also an Assembly Member, and a smaller proportion than in the House of Commons if the Counsel General is not.
	The Assembly will also have powers over Welsh Ministers' and Deputy Welsh Ministers' salaries by virtue of Clause 53, should there be any concern about the size of the payroll. Furthermore, I draw the attention of the Committee to the fact that in the Assembly committee's consideration of the Bill, the only suggested amendment to this clause, which was subsequently withdrawn, sought to set limits of eight Ministers and five deputies.
	The noble Lord, Lord Roberts of Conwy, raised the question of the workload of the Assembly in relation to the number of Ministers. As I believe I pointed out previously, to ensure adequate scrutiny there is considerable scope for the Assembly to adapt its working practices and to spend less time on routine subordinate legislation. The Presiding Officer, the noble Lord, Lord Dafydd Elis-Thomas, agrees and has said that the timetable should increase from 33 to a minimum of 40 weeks a year and that Monday and Thursday mornings should become part of the Assembly's working week. In an interview he said:
	"I agree with the Secretary of State, we all have to work harder here. There should be three to four days of proper scrutiny . . . We should sit for at least 40 weeks a year . . . We finished for Christmas at least a fortnight before Parliament".
	With that explanation, I hope that the noble Lord will feel able to withdraw his amendment.

Lord Roberts of Conwy: I am grateful to the Minister for his reply and the other comments made in this brief probing debate. I must say to the noble Lord, Lord Livsey, that my mind goes back to the time when only three Ministers looked after the Welsh Office and it was managed. We expect that many of the 20 or so spheres that he mentioned will be combined as responsibilities for Ministers. Nevertheless, the difference between the new clause and Clause 51 is minor, as I pointed out. We are glad that there will be a limit in the Bill on the number of Ministers, and also to hear repeated what was said by the Presiding Officer of the Assembly and endorsed by the Government: that the Assembly sittings and number of working days would be extended to cope with its new responsibilities, which, after the passage of the Bill, will be substantially different from the work of the old Assembly, with far more emphasis on holding Ministers to account. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn
	Clauses 52 to 58 agreed to.
	Schedule 3 agreed to.
	Clause 59 agreed to.
	Clause 60 [Promotion etc. of well-being]:

Lord Hunt of Wirral: moved Amendment No. 44:
	Page 35, line 22, after "anything" insert "within their powers"

Lord Hunt of Wirral: I thank the Minister for his kind welcome earlier today. I wish to turn for a few moments to the Ram doctrine. As I understand it, the doctrine is set out in a memorandum, dated 2 November 1945, from the then First Parliamentary Counsel, Granville Ram. It states that a Minister of the Crown may exercise any powers that the Crown has power to exercise, except in so far as the Minister is precluded by statute from so doing, either expressly or by necessary implication. But I do not think Ministers can pray that doctrine in aid when they argue against these small amendments.
	Amendment No. 44 would insert into Clause 60 the words "within their powers", so subsection (1) would read:
	"The Welsh Ministers may do anything within their powers which they consider appropriate".
	Under the Royal prerogative, discretionary ministerial powers are held to exist except where they are curtailed or curbed by statute. As they stand at present, however, Clauses 60 and 70 stand to create worryingly wide-ranging and open-ended powers for Ministers. We should think once, twice or perhaps even a thousand times before giving anyone in any circumstances the power to quote Clause 60 to do anything.
	I was interested to hear my noble friend talking abut the number of Ministers. I recall the time when I was privileged to work with him in the Welsh Office; he seemed to perform the duties of at least 10 or 12 Ministers. Therefore, he is somebody one would trust always to exercise those powers very carefully indeed. But I do not think he ever sought the sort of wide discretion in Wales currently afforded by Clause 60. I hope the Minister will think carefully about what are reasonably minor amendments but which will set in context how Ministers can exercise their powers.
	Just as citizens are free to do anything that is not illegal, so Ministers are generally empowered to do anything which does not conflict with statute. The same is held to be true of Ministers in the Welsh Assembly, which is why it is not only right but essential to qualify the powers created in these two clauses.
	The later amendment, Amendment No. 48, would insert, in page 38, the word "reasonable". Therefore, under the heading "Financial assistance" in Clause 70, subsection (1) would read:
	"The Welsh Ministers may give financial assistance . . . to any person engaged in any activity which the Welsh Ministers consider will secure, or help to secure, the attainment of any [reasonable] objective which they aim to attain in the exercise of any of their functions".
	That would be a good reassurance. In an ideal world or one based upon that hoary doctrine of subsidiarity, power would invariably be passed upwards rather than delegated downwards. But we do not live in an ideal world and that is simply not a practicable system. The fact is that the Welsh Assembly and the Assembly Government or Senedd are all created under an Act of Parliament. It falls to us as parliamentarians to establish precisely what their role and functions are to be and where their powers begin and end.
	Of course these clauses are not a recipe for despotism, although in a different context some might put that construction on their terminology. However, unamended and unqualified, they may well be a recipe for chaos and confrontation. They are ambiguous and seemingly open-ended, and they could so easily be improved if Ministers were minded to accept these small but reassuring amendments. The amendments are in no sense wrecking. It could even be argued that they do no more than make explicit what is already very much the moving spirit behind the clauses. I beg to move.

Lord Davies of Oldham: The noble Lord is not going to entice me down the path of the Ram doctrine. I am not sufficient a constitutional lawyer to debate with him those issues. Let me say, however, that we have taken that point into account. It is because we do not think that Welsh Ministers can rely on that doctrine, which is fairly complex and leads to a great deal of academic debate, that we have included these clauses in the Bill. We want to reduce the uncertainty over Welsh Ministers' powers.
	The noble Lord, Lord Hunt, said that his amendments were modest, but so, let me say, are the clauses in the Bill. They are in a very real sense modelled on Section 2 of the Local Government Act 2000, which gave local authorities the power to promote well-being—the noble Lord will be entirely familiar with that legislation. That was done to reduce uncertainty over powers of councillors to act where there was no specific power relevant to what they wanted to do, even though it would be for the benefit of the area and the people in it.
	If we seek to create for Welsh Ministers only that range of competence and definition as is in the Local Government Act for councillors, I do not think that the noble Lord can object greatly to what we have in the Bill. His amendments, although not wrecking—I would not use a concept as vulgar as that—would substantially change the Bill. We have included the power in the Bill for a very good reason. The power is executive and not legislative. The Ministers will be answerable to the Assembly for any powers that they exercise. The clause does not give Welsh Ministers the freedom to exceed the devolution settlement; it just enables them properly to exercise their powers by clarifying the extent of those powers.
	If the Welsh Ministers did not have a general power at all, they would be uncertain as to their precise ability to participate in important initiatives of benefit to Wales, such as supporting the police as part of a multi-agency initiative to tackle drug-related issues. Another example would be if they wanted to take action outside Wales. They might want to offer grant funding to Welsh National Opera to undertake an international tour. That would be to the benefit of the people of Wales in enhancing the reputation of the opera and spreading appreciation of Welsh culture.
	The power would not be specific. Ministers would be acting on a general power of promoting well-being and, if they exceeded any such power, the Assembly would check them, although, in that last illustration, I would expect the Assembly to endorse them and even egg them on in providing resources in that area.
	I seek to define a couple of areas, but there are many others—I could go through a long list, but it would not be anywhere near exhaustive—where Ministers would enjoy the support of the people of Wales for enhancing well-being. Unless Ministers had some aspects of general powers, they would not be able to do that. The frustration that obtained in local government and that led to the Local Government Act 2000 extending this concept would be felt in Wales if we did not provide for such a power, as we are doing in the Bill.
	I hope that the noble Lord will recognise that, just as he has pursued his amendments modestly, so I am trying to rejoin by saying that these powers are not excessive. There is no attempt to take away the answerability of Ministers from the Welsh Assembly or to extend the concept of the devolution powers. The Bill merely gives them authority and freedom in areas where they would have the right to expect that. It defines for them the area in which that should be so. I hope that, after that explanation, the noble Lord will feel able to withdraw his amendment.

Lord Livsey of Talgarth: It is my privilege, too, to welcome the noble Lord, Lord Hunt, who proposed this amendment. We go back quite a long way on Welsh affairs. It is good to see him here this afternoon.
	On the amendment before us, certainly our Members had a long discussion about Clause 60. It is important to look at the specific promotion points. First:
	"the promotion or improvement of the economic well-being of Wales"—
	we all know that the GDP of Wales is well below the UK national average. A lot certainly needs to be done about that. Then:
	"the promotion or improvement of the social well-being of Wales"—
	we know of many instances and communities where the social well-being is certainly not what it might be and needs to be improved. Finally, as regards the environment or its improvement, we know that the environment of Wales is very precious indeed.
	The clause requires that "anything" must be done that is, according to the wording of Clause 60(1),
	"appropriate to achieve any one or more"
	of various objectives. So, after a long discussion, we felt that this particular part of the Bill was appropriate for the needs of Wales.

Lord Hunt of Wirral: I am grateful to the noble Lord, Lord Livsey, for welcoming the amendment. It is good to be working with him, albeit on some modest amendments at the present time. I am grateful to the Minister for his "modest" contribution. I could say that he has so little to be modest about, but I would not dream of doing so.
	People considering these debates will be totally confused. The amendment would insert the provision that Welsh Ministers may do anything "within their powers" that they consider appropriate. I am not quite sure that the Minister has addressed the effect of the amendment. As I understand it, there are powers that would cover the areas that he is talking about. The Welsh National Opera is very close to my heart, as he will know—15 years ago we were able to take steps to ensure that the Welsh National Opera went from strength to strength; it is a touring company and is often to be heard in our major cities and in London. The powers are there already. If we are to allow the existing powers to continue, that would be good enough.
	I would like time to consider what the Minister has said. I agree strongly with the noble Lord, Lord Livsey, that we are concerned to ensure the promotion or improvement of the economic, social and environmental well-being of Wales. We all share the concern that the GDP has slipped back a little. That is causing great concern for those who want to see Wales going from strength to strength. Obviously I will reflect carefully on all that the Minister has said. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendment No. 45 had been withdrawn from the Marshalled List.]
	Clause 60 agreed to.
	Clause 61 [Support of culture etc.]:

Lord Temple-Morris: moved Amendment No. 45A:
	Page 36, line 11, at end insert—
	"other than where to do so would render the exercise of the duties and functions currently undertaken by bodies in Wales created by royal charter or warrant in whole or in part redundant"

Lord Temple-Morris: I say at the outset that I have a presence here which needs to be explained in that after nearly 28 years in another place, representing an English constituency, very few people tend to remember—although I am sure that most Members of the Committee are aware of what I am about to say—that I come from Wales, I am proud to say. I come from Cardiff and, indeed, Wales is very much the land of my fathers and of my grandfathers. Over the years I have retained many contacts in Wales, most particularly in the arts sector, which is why I have tabled this amendment.
	I have a considerable concern—which I hope is shared by Members of the Committee—that we get devolution right. I say that having been very much in favour of devolution. Indeed, I was publicly in favour of it when I was still a Conservative and devolution was not a policy of that party. There is a very real danger here. Some Members of the Committee may consider that the sequence which I shall outline in a moment is an example of that. After a long period of English dominance over Welsh institutions, there is a danger of overdoing it and of clutching unto oneself all the power that one can—a sort of devolutionary aspect of the "We are the masters now" syndrome.
	I also have a very real concern about the merits of the issue. I make it clear at the outset that we are after the best and most effective governance of the arts in Wales and the maintenance of the arm's-length principle which has been with us since 1945, and was introduced by Jennie Lee herself. There is absolutely no argument about the desirability of increasing attendance and participation of disadvantaged groups in the arts within Arts Council of Wales circles or, indeed, anywhere else. Indeed, the excellent record of the Arts Council of Wales in that regard should be referred to. I mention in particular the charity, Youth Music, a creation of the Arts Council of England, but which, to my knowledge, has done excellent work in Wales. It was introduced under the present Government very much with those objectives in mind but is administered mainly by itself under the guidance of the Arts Council and the supervisory role of central government.
	These issues, and the background to them, need to be put firmly on the record as the Bill goes through this House and the Government should have the opportunity to comment on and to justify their stance. I have tabled the amendment in no party political spirit. I want my noble friends and Members on all sides of the Committee to realise that. We are dealing here with the governance of the arts. We are effectively granting powers to one part of the United Kingdom—namely, Wales—that are not so exercised in England. I say by way of illustration that I would be horrified if, for example, the National Theatre, of which I am a fairly frequent patron, was to come under the direct control of any government department, however benevolent that control seemed to be when it was introduced. I believe that Jennie Lee would agree with me, were she here today.
	I now come to the background to these matters, which it is very important to set out. Section 28 of the Government of Wales Act 1998 gave the Assembly the power to change or abolish a range of public bodies in Wales. These were listed in Schedule 4 to the 1998 Act, which introduced devolution to Wales. The schedule divided the public bodies into four categories—Parts I to IV. The Arts Council of Wales, the Sports Council for Wales, the National Museum of Wales, the National Library of Wales and the Royal Commission on the Ancient and Historical Monuments of Wales are listed under Part IV. Bodies created—this is an important point—by Royal Charter or warrant were all included in Part IV. Under Section 28 of the 1998 Act, the Assembly was debarred from removing any function from a body listed in Part IV unless it was done with the consent of that body. It could not even add a function without that body's consent. The clear motive was to protect the status quo as far as those bodies were concerned. It was, in effect, the statutory embodiment of the arm's-length principle.
	That was confirmed with a number of references leading up to the 1998 Act, which should be referred to. Before the present Government came to power in 1997, a Welsh Labour Party document—a good document—was published in 1996. The document, Preparing a New Wales, said:
	"Bodies established by Royal Charter or by warrant, under the Royal Prerogative such as the National Museum of Wales, the Arts Council of Wales and the Royal Commission for Ancient and Historical Monuments in Wales will continue to be responsible for their existing activities.
	The Assembly will take over the role and responsibilities of the Secretary of State"—
	in other words, of central Government—
	"with regard to these bodies, and will ensure openness and public accountability in their activities".
	All is well and good with that, I am sure most of your Lordships will agree. There then comes, after the accession into power of the Labour Government, a government White Paper in 1997, leading up to the 1997 referendum. It was called A Voice for Wales. It made quite clear that:
	"The Assembly's powers to restructure bodies will not apply to those which, firstly, operate at arm's length from Government, specially to guarantee the independence of their decisions; and secondly, were created by Royal Charter or Warrant (such as the National Library of Wales). Such bodies are governed by their Charters or Warrants, and these can only be amended by Her Majesty's agreement".
	Finally, we come to the debate on the Government of Wales Bill in 1998, in Parliament. During the passage of the Bill in another place, Peter Hain, now Secretary of State for Wales, and for whom I have the highest personal regard, then Parliamentary Under-Secretary at the Welsh Office, said:
	"Under Clause 29"—
	which became the Section 28 that I have already mentioned—
	"we have made it clear that royal charter bodies can only gain functions; they cannot be taken away".—[Official Report, Commons, 25/2/98; col. 466.]
	Mr Hain had earlier said:
	"The assembly has the ability to leave only 16 quangos in existence, if it so chooses. That amounts to a bonfire of the quangos, which we lit with the Bill, and we have complied with our commitments in the White Paper".
	This so-called "bonfire of the quangos" is an important part of the background to this, because the Under-Secretary, Mr Hain, then goes on:
	"Why did we not abolish all the bodies? That brings me directly to the Arts Council of Wales and the Sports Council for Wales. They together with the other three bodies—the National Library of Wales, the National Museum of Wales and the Royal Commission on Ancient and Historical Monuments of Wales—are all bodies created by charter or royal warrant.
	Unless the Conservative Opposition have suddenly become a republican Opposition, surely they would agree with me that it is for Her Majesty to agree changes to those bodies. It is not appropriate to amend them by means of a Bill".—[Official Report, Commons, 25/2/98; col. 462.]
	We then come to the actions of the Welsh Assembly. I will deal with this as succinctly as I can—it is the recent history of this matter. As part of the Assembly Government's review of Assembly-sponsored public bodies in 2004, only two years ago, they decided to circumvent that protection of the status quo in the case of the Arts Council of Wales, by seeking to use Section 32 of the 1998 Act—to circumvent therefore the Section 28 that I have mentioned by use of Section 32 of the 1998 Act—which is the equivalent of the Clause 61 that I seek to amend. Section 32 of the 1998 Act gave the Assembly a general power to do anything appropriate to support the arts. They intended to use this section to allow them to transfer responsibility for six large arts organisations, from the Arts Council of Wales to the Assembly Government's culture department, thus making them direct clients of government. That was, of course, the direct subject of a defeat in the Welsh Assembly, which I will refer to in a moment. That was the intention; it has now been, for the moment at least, thwarted by that defeat.
	The companies were—for the record I have to mention them, but they are all the largest clients of the Arts Council of Wales—the Welsh National Opera; the BBC National Orchestra of Wales; the Clwyd Theatr Cymru; the Welsh Language National Theatre Company; the Diversions dance company; and the Academi, which is a literature promotion agency for Wales and a representative organisation for Welsh writers in both languages. Their combined annual grants were at the time equivalent to no less than 43 per cent of the total Arts Council of Wales grant in aid. If that is not a form of emasculation, I do not quite know what is.
	The Assembly Government also sought to transfer—I say "sought to" because for the moment it has not been able to take effect—or the actual words were to "bring together", the strategic planning functions of the council to the department responsible for culture. In relation to the Arts Council, the Assembly Government challenged the arm's-length principle that has governed the relationship between government and the arts since the creation of the Arts Council of Great Britain in 1945. There had been—and this is not unimportant—no prior consultation on these important proposals. The Arts Council of Wales opposed the change, but proposed a compromise solution that the Minister for Culture, Welsh Language and Sport rejected. It became a matter of public debate—which I remember going on at the time as I was following it quite closely—in which the arts sector gave overwhelming support to the Arts Council's position.
	The matter was pressed eventually to a vote in the Assembly in the plenary session on 1 February 2006, and the opposition parties combined to defeat the Assembly Government by one vote. The resolution that was carried instructed the Assembly Government to halt all preparations to transfer responsibility for the six large arts operations until a public review and consultation with all stakeholders was carried out and a further Motion brought to the Assembly in December 2006. We are well ahead of that for the moment. That committee is now in active session. The terms of reference for the review were agreed, and they were extensive. It is being conducted by a panel of six people under the chairmanship of Elan Closs Stephens, the former chairman of S4C. They are all very distinguished people in their own right. It is fair to say that this clause is running ahead of any conclusion that that committee might reach. That is an important point.
	I have already mentioned a couple of relevant issues of concern. First, under the current Act an Assembly Member would not be able to abolish the Arts Council of Wales without persuading the Secretary of State for Wales—in other words a Cabinet Minister in central government—to petition the Privy Council to that effect. Under the new Bill, Welsh Ministers are themselves Ministers of the Crown and would be able to petition the Privy Council directly for changes to or abolition of the Arts Council, or the National Museum of Wales, or any of the other bodies. The protection given by the arm's-length principle is therefore considerably less than the 1998 Act. It goes around the safety valve of the Secretary of State.
	The second item of immediate concern is Clause 61, which seeks to replicate the effect of Section 32 of the 1998 Act, which I have already mentioned, by giving Welsh Ministers the general power to,
	"do anything which they consider appropriate to support",
	arts, crafts, cultural activities, projects and so on. Given the uncertainty about the use to which Section 32 of the 1998 Act was put, there is a strong case for clarifying the issue in the Bill. Speaking now with a legal hat on, there could be a considerable legal argument here as to whether the action of using Section 32 against Section 28 was legitimate and not perhaps ultra vires, but that has never been heard legally. The sweeping powers that we are giving in Clause 61 in advance of the proceedings of the committee that I have mentioned need to be justified by central government. It is for your Lordships' House, the other place and central Government in taking through this Bill to act in the necessary supervisory way that is merited in this case. I want to re-emphasise that there is an active committee set up to consider this matter because of an Assembly defeat.
	My amendment limits what I have described as fairly sweeping powers to support the arts. I hope it clarifies the matter, but such a clarification is not intended to subvert the primary intention of this Bill, which grants the Assembly and its Government a much wider degree of competence. That is all well and good. It introduces a check and balance to ensure that if or when changes are made to these Royal Charter bodies, they will be made by reference to the Privy Council, after full consideration and debate by all parties in Wales, and not by administrative action alone, which is what Clause 61 amounts to.
	I now want to sum up the position. I believe that this whole process has been unsatisfactory. There has been no proper consultation with the Arts Council; there has been no proper consultation with anybody else. The former chairman of the Arts Council, who was obliged to leave office on 31 March 2006, was—shall we say—at least constructively, or summarily, dismissed on 23 December 2005. He was a person of very high status and renown in the Welsh arts, and indeed generally. The Arts Council of Wales was united in his defence and against these proposals. There had effectively been no consultation about them. There was also widespread public feeling against the Assembly Government over this, which has done my own party's government considerable harm. It went well beyond the Welsh arts world, leading to the defeat in the Assembly on 1 February 2006.
	There is a basic unsuitability in these six bodies being brought into the Government's culture department. There has been talk in Wales of parallels with the Soviet Union and eastern Europe before the Berlin Wall came down. That is a gross exaggeration and I want to make it clear that in moving this amendment I do not doubt the good intentions of the Assembly Government. It is not their integrity that is at stake here, but the good governance of the arts in the longer term. There are many people here who know Wales as well as—or better than—me, including a number who have helped to administer it. Wales is a small place. It is certainly a place where, in its establishment, and indeed generally, everyone knows everyone. In such a small place, a scenario where too much power is put in one place will inevitably lead to a sense of obligation and a general unwillingness to displease that source of power. The effect of that is possibly, or even probably, insidious.
	I shall give a couple of examples. Theatres should not be direct clients of government; nor should the BBC National Orchestra of Wales. There is an obvious clash of interest here. The BBC, and not just in Wales, is frequently out of sync with the government of the day. By putting a very important instrument of BBC Wales under the control of the government of Wales, there is a conflict. It should not be a direct client of that government. Finally, Academi gives grants to and represents writers; it should not be a direct client of government.
	This is an important amendment. It raises important principles of democratic government and of devolution. Central government and this House have a responsibility to consider it very carefully. In that context, I look forward to my noble friend's reply.

Lord Crickhowell: The noble Lord has rendered the Committee and the people of Wales a very considerable service by tabling this amendment and by setting out the arguments so fully. Previously in Committee, I touched much more briefly on the issue. I referred then to the way in which Mr Geraint Talfan Davies had been treated. Apparently, he was dismissed largely because he represented the views of the council of which he was chairman in opposing the decision taken by Mr Pugh, the Minister with responsibility for these matters within the Assembly. I understand he was also criticised for the fact that the Minister did not consider that the Arts Council had been doing enough to ensure the attendance and participation of all sections of the population, a matter referred to by the noble Lord. The evidence on which that charge was based was a survey carried out by the Arts Council of Wales, expressly at the instigation of Mr Geraint Talfan Davies, its chairman. So it was a particularly strange argument to advance for getting rid of him.
	Incidentally, Mr Geraint Talfan Davies, when chairman of Welsh National Opera, played a leading role in extending, by a very considerable extent, the activities of Welsh National Opera in exactly that field, in schools and local communities, for which it is now very well known.
	I suppose I should declare an interest in that for half a century or so my father served on the Court Council and Arts Committee at the National Museum and my brother was president of the National Museums and Galleries at the time of his death. My wife also served for many years on the Arts Council of Wales and in another capacity was responsible for introducing into Wales that admirable charity, founded by Lord Menuhin as he became—Yehudi Menuhin—Live Music Now, which has probably done more to take music to places and to people who would not otherwise hear it in Wales than any other organisation.
	I speak with particular feeling about these issues. I can speak too as having been known, as Secretary of State, for the enthusiasm with which I funded the arts and having launched the great new building in the heart of the National Museum of Wales, which now houses the Davies Bequest. That work was carried on by my noble friend Lord Walker, whom I am glad to see in his place, and by the noble Lord, Lord Hunt, who played a leading role in extending arts activities into the valleys as part of the valleys initiative.
	With that background of taking a keen interest in the arts and arts matters, I support every single word uttered by the noble Lord. I looked at this clause with considerable concern when I saw this apparently very extensive power that could be applied, not only, incidentally, to the public bodies to which he referred, but also to other bodies, such as the National Trust, on which one would like a little elaboration. After all, the National Trust has responsibility for buildings and places of historical or architectural interest in Wales and there are other obvious organisations that might be affected by these powers.
	I am firmly of the view that the arm's-length principle is an important one. To bring together the funding of these six bodies in this way, so that such a large part of the finance going to arts organisations in Wales comes from a single source—a single Minister—has dangers. The noble Lord spoke of them in very cautious and reasonable terms. I shall certainly not suggest for one moment that the example of Soviet Russia will be followed. He was quite right to dismiss that allegation. However, there are real threats. If all the arts organisations, covering theatre, writing and every form of the performing arts, are funded from a single source, people will feel under obligations. They may feel that they have to listen to suggestions put to them, however discreetly, about the way in which they operate and the kind of performances that they put on or should not put on. It is no defence to say, "Ah well, it will all come under the general supervision of the Assembly" if the Minister is perhaps answerable to a party with a substantial majority in the Assembly. If only to get rid of any suggestion that undue influence is being exerted in this way, one should have the arm's-length principle as a protection.
	As the noble Lord, Lord Temple-Morris, told the Committee, Mr Pugh and the Welsh Assembly Government sought to circumvent the limitations of Section 28 by looking to Section 32 of the 1998 Act. Those are exactly the powers that we are now considering. So surely it is right that, if protection should be specifically written into the legislation to ensure that charter bodies are not taken over in this way, there should be no doubts allowed in another clause that might be used to overrule it.
	We must recognise that we are dealing with bodies with a well deserved reputation. For many years, organisations such as the National Library of Wales and the National Museums and Galleries of Wales have built up their reputation because they have been governed by people with a huge range of scholarly expertise and management skills. They hold a high reputation today because of that. Of course, Welsh National Opera has an international reputation in its field. We are dealing with bodies that cannot be under threat—if that is the right word—from interference by Ministers because they fail to perform. Many of them have performed outstandingly well.
	I therefore hope that the Minister will either accept the amendment of the noble Lord, Lord Temple-Morris, which would be the best way out, or at least give us assurances satisfying us that the powers in this clause could not be misapplied in the way described by the noble Lord, and which were attempted under the previous Act. I hope that the Minister will take his noble friend's amendment extremely seriously. That is what it deserves.

Lord Livsey of Talgarth: I declare some interests. I am a former chairman of the Brecon jazz festival, vice-president of the Hay festival of literature—which, with the Florence family, we founded to great success—and my daughter is an actor who performs regularly in Clywd Theatr Cymru and on S4C, so I must be careful what I say.
	However, I fully support the amendment of the noble Lord, Lord Temple-Morris. He may be surprised to hear this, as I am an ardent devolutionist. I also support what the noble Lord, Lord Crickhowell, who has done a tremendous amount of work for opera in Wales, has said. We have all benefited from the previous status of the Arts Council of Wales, which has performed remarkably well. It went through a rough patch about five years ago but, other than that, it has done a very good job indeed.
	I am not a lawyer, but I tend to agree with the interpretation of the noble Lord, Lord Temple-Morris, that, in a legal sense, the Arts Council does not have quite the same status as what would be called a quango. Indeed, when a previous Secretary of State, Ron Davies, said that he was going to have a "bonfire of the quangos", I do not think he was referring to the Arts Council or the Sports Council, because they have a different status.
	All that needs to be said has been said. I do not want to delay the Committee too long with these matters, but there is undoubtedly a case for such bodies, which stem from a Royal Charter and which are at arm's length, retaining their status because they should not be the subject of huge political controversy. They should continue to produce excellence for Wales. As we have heard today, they do a very good job.
	The noble Lord, Lord Temple-Morris, was correct to refer to Sections 28 and 32 of the Government of Wales Act 1998. It seems extraordinary that Section 28 debarred the Assembly from removing any function from a body listed in Part 4 unless it was with the consent of that body, yet Section 32 has been used to cause the present, enormous hiatus in the construction of the arts in Wales.
	I am pleased that Elan Closs Stephens and her committee are to look at the overall situation. The people on that committee are wise and they look as though they will come to a sensible conclusion. I hope that the same wisdom will apply in the Assembly, but we are on dangerous ground here—I speak as an ardent devolutionist—because this is a matter for the Assembly. None the less, the Government of Wales Act 1998 took account of these bodies which were formed under Royal Charter. I give way to the noble Lord, Lord Rowlands.

Lord Rowlands: Does this Bill repeat Section 28 of that Act in any place?

Lord Livsey of Talgarth: I think from what has already been said that it does not. I am sure that I will be corrected if I am wrong, but I understand that Clause 61 puts into the Bill what was the upshot of Section 32 of the Government of Wales 1998.

Lord Roberts of Conwy: I shall be very brief. I think that I speak for all sides of the Committee when I thank the noble Lord, Lord Temple-Morris, for his extensive, but necessary, introduction to the amendment. He rightly drew attention to the bonfire of the quangos that was lit by Assembly Government in Wales. Various bodies were tied to the stake, as it were, including the Welsh Arts Council. We also heard on the first day of this Committee about the impending fate of the Welsh Language Board, which is another quango threatened with burning.
	The impression has been given that the decision was taken without full consideration of the feasibility or the consequences. It was automatically assumed that getting rid of the quangos was a good thing and could be only beneficial. Gradually, people have come to realise that the quangos served a useful purpose and had many high achievements to their credit.
	In the Times of June 15 last year, Magnus Linklater described the situation in Wales as he understood it. He wrote then—I stress that it was June of last year:
	"In Wales, where the Assembly has moved to take over arts funding, there is a dawning realisation that the much maligned Arts Council may, after all, be the best body to take these tricky decisions".
	He was referring to the allocation of funds to different organisations. He went on to write:
	"I know of no European country that does not have some form of semi-independent organisation to manage its arts policy".
	So it seems on the face of it that the Assembly Government have committed an error of judgment and would be well advised to revise their thinking.

Lord Richard: What the noble Lord said is important. He said that the Assembly seems to have made an error of judgment. That may or may not be right, but the question is whether this House should prevent the Assembly exercising that judgment. That is the real point of this debate: not whether it got it right or wrong, but whether the Bill should prevent it going through that exercise. But I interrupted; I had better not make a speech.

Lord Roberts of Conwy: The other side of the question that the noble Lord raised is whether this House should aid and abet the Assembly, as it is alleged to do through this clause. We have considerable cause for concern.
	I shall end the quotation from Mr Linklater. He said:
	"If every one of these bodies were to be abolished, their functions would have to be subsumed into the great maw of government bureaucracy, staffed by civil servants, controlled by ever-expanding hierarchies of senior officials. Far from contracting, they would expand, for that is what civil servants are good at. Costs would certainly escalate, since at present most quangos are run by councils of enthusiastic experts whose contribution is voluntary. The energy with which they approach their task would be drowned in a welter of benchmarks and performance targets".
	There is at least an element of truth in what Mr Linklater said. It is a truth that is becoming more obvious to members of the public in Wales who are interested in what is happening regarding quangos. Important points have been made in this debate and I shall listen with great interest to the Minister's reply.

Lord Evans of Temple Guiting: As it appears to be fashionable to declare a few interests, I shall start by saying that I am also a vice-president of the Hay literary festival, but I had no idea that I shared that great honour with the noble Lord, Lord Livsey. I have been chairman of the Royal Court Theatre and various quangos relating to libraries, museums and archives, I have served on Arts Council committees, and my father's papers are deposited at the University of Wales, Aberystwyth. Many of the interesting arguments that I have heard this afternoon are arguments that I have had in many discussions about government funding of the arts, the arm's-length principle and what duties and responsibilities government has in relation to organisations it funds.
	I am not going to give a great deal of comfort to my noble friend Lord Temple-Morris and other noble Lords who agree with him, because I agree with my noble friend Lord Richard that this is a matter for the Assembly. If, as the noble Lord, Lord Roberts, suggested, it has made an error of judgment, so be it. The great advantage of this debate is that there is a lot of material on record that Assembly Members will be able to reflect on.

Lord Crickhowell: As so often before, the noble Lord, Lord Rowlands, asked a crucial question. I asked myself that question, but my researches ran out of time and I never found the answer. I have had a quick glance through the Bill, but I have not found the answer. I do not think that Section 28 of the previous Act is repeated. If not, why not? Why the change of policy? If that is so, this is not just a reinforcement of the argument about the "any powers" clause, but we are engaged in a major change of government policy that has not been identified and about which we have had no explanation. However, I may be entirely wrong and the Minister may be able to show me the relevant clause and the protection that has been repeated.

Lord Evans of Temple Guiting: I was going to come on to the matter but, as the noble Lord, Lord Crickhowell, has raised it, I will deal with it now. Section 28 of the Government of Wales Act 1998 has not been repeated in the Bill, but it has not been repealed either. That will give noble Lords something to ponder on while I continue.
	The amendment seeks to restrict the ability of Welsh Ministers to support any cultural or other activity referred to in Clause 61, cutting right across the functions and activities of all relevant charter or warrant bodies in Wales. To give effect to such an intention would impede the proper business of the Welsh Assembly Government and make it impossible for Welsh Ministers to provide, for example, financial support for major events or for institutions such as the Wales Millennium Centre. That would not be an acceptable proposition.
	It is absolutely clear that things have happened in the Assembly, particularly in relation to the Arts Council, that have caused great controversy. However, I agree with my noble friend Lord Richard: if there are issues that Members of the Assembly might learn from, so be it, but it is not for us in this Chamber to debate and to legislate on this matter. It is for the Assembly Government to decide and for the Assembly to scrutinise.
	We are here not to restrict the Welsh Assembly Government if we do not agree with their policy, but to ensure that the role of the Assembly is clarified and to enhance its ability to scrutinise policies such as this. This Bill—this is a fundamental point—is not the right vehicle for the noble Lord's concerns. This has been a very interesting debate, particularly for those of us who have spent a great deal of time working in the arts world. I am sure that what we have said and debated will be read with considerable interest by many people in Wales.

Lord Roberts of Conwy: The Minister has said that it is not for us to hinder the Assembly in any of its decisions, but could he answer the obverse question: is it our duty to aid and abet the Assembly and, as it were, ease its path on a course on which it appears set?

Lord Evans of Temple Guiting: I think that "aid and abet" is a highly emotive phrase. We are looking at Clause 61 on "Support of culture etc.". The Bill states:
	"The Welsh Ministers may do anything which they consider appropriate to support",
	a list of functions from (a) to (k). What appears to be being said this afternoon by a number of noble Lords is that perhaps something has gone a little wrong in the Assembly. I say for the third time that we have had the debate, it is all on record, and I am sure that a considerable number of people involved in the arts, not only in England but in Wales, will be interested to read what has been said.

Baroness Finlay of Llandaff: I apologise for coming in at this point. Could the Minister clarify for me that bodies established under royal charter or warrant have the same standing in England and in Wales and will continue to do so after the enactment of this Bill, or will there then be a difference because of the way the clause is worded?

Lord Evans of Temple Guiting: I understand that there will be a difference because of the way the clause is worded. I think that we have to acknowledge that any government must approach the matters we have discussed of arm's-length principle and of funding of the arts with great sensitivity.

Lord Richard: My noble friend said there would be a difference between the English and Welsh situations. If this Bill is passed in its present form, is there any difference between the Welsh situation and the Scottish situation where there is devolution? I do not think that there is.

Lord Evans of Temple Guiting: I will have to come back to my noble friend on that. I have difficulty thinking in parallel, but to think in a triangle is, at the moment, beyond me.

Lord Crickhowell: I am sorry to interrupt the noble Lord, but he previously made a very important statement. He said that Section 28 of the previous Act had not been repeated but had not been repealed. In that case it is still, presumably, in force, in which case all the stuff he said about not interfering with the Welsh Assembly's freedom presumably does not apply because the restriction is still there in law. Why is he making a speech therefore saying that the Assembly should have full powers on this issue, while maintaining on the statute book a section that specifically prevents it having them? I am delighted that there is a section still on the statute book, but he appears to be making a speech that is not related to that fact.

Lord Evans of Temple Guiting: I do not agree; what I have said is absolutely consistent. The power the Assembly has under Section 28, which is still in existence, is there as a background check to its activities. At the same time it has great freedom to work within the Act and the independence that it has already under the existing agreement and will have under this Bill.

Lord Temple-Morris: It falls to me to say a few words in conclusion about this amendment before I seek leave to withdraw it. I say that for the comfort of my noble friend Lord Richard and my other noble friends. I have to confess that, after listening attentively to my noble friend's reply, I am more concerned about this matter at the end of the debate than I was at the beginning. I thought I gave out quite a bit of concern in the course of my few words.
	I am very grateful for the support given to the amendment by both Front Benches from the noble Lords, Lord Livsey and Lord Roberts, and also from a former Secretary of State, the noble Lord, Lord Crickhowell, who—I know we agree on the subject—spoke a lot of sense.
	Why am I more concerned now than I was then? I believe that the Minister's reply flies in the face of any constitutional principle involved in the matter. I specifically and deliberately moved the amendment on the basis that this Parliament, and your Lordships' House, had a responsibility for this devolutionary measure. I then set out the background to it, which creates certainly political difficulties and potentially legal difficulties in the clash between Sections 28 and 32 of the 1998 Act. There we clearly have a supervisory role.
	The Minister's reply gives no indication whatever that there is any concern, other than everyone reading matters with interest—I am fascinated to know that everyone is going to read my speech with interest—about any supervision being imposed. Indeed, a central government responsibility will be abdicated on the grounds that we cannot interfere with it because we are dealing with devolution. That is shielding behind devolution in an Act granting further devolution. What is the point of the Act? What can one ever object to in a devolutionary measure which is introducing further devolution if, because we have already introduced a certain amount of devolution, we cannot then interfere with what the Assembly wants, yet we are busy giving it far more power?
	I am fascinated by the fact that Section 28 has apparently not been repealed. I agree with the noble Lord, Lord Crickhowell; it is absolutely fascinating that it does not reappear in the Bill. One wonders why, if Section 28 does not appear in the Bill, it is necessary to put in Clause 61 as a repeat of Section 32. It would not take a genius to realise that Clause 61—I shall have to check this—introduces yet more powers. Involving more bodies has a purpose in the Bill that is directly contrary to the direction in which we need to go.
	It gives me no pleasure to speak like this, but I think it is necessary because we have a certain responsibility in this Chamber, which I hope this debate has helped to exercise. I do not seek the opinion of the Committee on something that I tabled from the government Benches. At the same time, I hope that what I and other noble Lords have said is useful, and that there will be an opportunity later in our consideration of the Bill for my somewhat tormented mind to be put a little more to rest as a result of what has been said from the Front Bench. In the circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Clause 61 agreed to.
	Clauses 62 and 63 agreed to.
	Clause 64 [Polls for ascertaining views of the public]:

Lord Livsey of Talgarth: moved Amendment No. 46:
	Page 36, line 39, after "Ministers" insert ", or the Senedd by resolution with a simple majority of those voting,"

Lord Livsey of Talgarth: I shall be fairly brief. Amendment No. 46 relates to Clause 63 on a consultation about cross-border bodies. It would, if accepted, go at the foot of the page and would add to Clause 64 the words,
	", or the Senedd by resolution with a simple majority of those voting,".
	The Assembly could then give an opinion on a consultation, which seems eminently sensible to us because it could then sound out the public's views on some of these issues. It depends on what part of Wales you are in, but some of the cross-border bodies are pretty important in this respect. The ones about which I am very well briefed are the flood defence committees, which tend to cross the border, following the river systems. The one on the Wye, for example, is a conglomerate of representatives in both Wales and England and ensures that the management of the Wye is good and that there is no excessive flooding. It is a highly co-operative operation run on a river-basin basis. All we really want is to enable the Assembly to express its opinion through a simple majority of those voting. I beg to move.

Lord Roberts of Conwy: Very briefly, I note that Clause 64 highlights the concentration of initiating power in the hands of Ministers so far as polls for ascertaining the views of the public are concerned. Other clauses in Part 2 describe their powers to perform all kinds of functions, including the initiation of secondary legislation. The Assembly's role is largely confined to approval or disapproval. That is something of a change from the past and from previous legislation. Clearly, the Liberal Democrats would like the Assembly to have the independent right, if it commands the support of most Assembly members, to have a poll on a subject of its own choice, not on one chosen by Ministers, and to have full control. I am not clear; is that at all permissible under the Bill?
	Incidental to our earlier debate about the use of the word "Senedd", which appears in the amendment, I notice that the official programme for the opening of the new building, which some of us attended on St David's Day, actually refers to the Senedd of the National Assembly for Wales. It does not describe the Assembly itself as the Senedd, so the Senedd is an undefined part or aspect of the Assembly, according to the programme of that great event—the opening of the new building.

Lord Anderson of Swansea: That is a fascinating point, but is the noble Lord suggesting that the wording on the programme has a certain legal meaning?

Lord Roberts of Conwy: Someone drafted it, and I suspect that it had the Presiding Officer's approval.

Lord Thomas of Gresford: I thought that the Assembly had decided to call the building the Senedd. Am I wrong?

Lord Roberts of Conwy: Perhaps it would not be wise, but I can certainly read from the cover of the document for the opening of the Assembly. It refers to the:
	"Opening of the National Assembly for Wales Senedd by Her Majesty the Queen".
	The Welsh translation of that is:
	"Agoriad Senedd Cynulliad Cenedlaethol Cymru".

Lord Elystan-Morgan: Will the noble Lord reflect on the fact that an address given on the very same occasion on behalf of the Speaker of the House of Commons, who could not attend as he was indisposed—it was a carefully crafted and measured declaration, read out by the Deputy Speaker—referred to the Welsh body as a sister Parliament?

Lord Davies of Oldham: I am not sure that I shall go down those byways; I am certainly not going to compete with the noble Lord, Lord Roberts, and his interpretation of the Welsh definition of the opening on that day. I thought that what was being opened was the building, and that that was what was referred to, but if the noble Lord says that the Welsh means that an institution, rather than a building, was being opened, I shall simply defer to his expertise and not go down that track.
	In any case, the amendment has nothing to do with the opening of the Senedd of Wales; it is about opinion polls and who can conduct them. It is a fairly minor amendment, and the noble Lord, Lord Livsey of Talgarth, moved it in fairly modest terms. But surely it is based on a misconception. He said that it was a change from the past. So it jolly well is. Of course it is, because the Bill changes a great deal. One of the Bill's main themes is separating the executive from the legislature. That is one of its prime concepts.
	I ask noble Lords to think for no more than 10 seconds about whether the power to organise an opinion poll on the exercise of Welsh Ministers' powers is an executive function or a legislative one. I do not think that noble Lords would say within 10 seconds that that is clearly an executive function. That is why it appears here as an executive function. I am not going to tackle the noble Lord, Lord Livsey of Talgarth, on the fact that the amendment would scarcely wreck the Bill; I merely suggest to him that we considered the separation of powers and concluded that this one clearly falls within the framework of the executive. That is why the Bill reads as it does.

Lord Livsey of Talgarth: I thank those Members who have contributed to this short debate. The amendment is phrased in relation to earlier amendments—I think that they were the first amendments debated—about the Senedd. We had a long debate then, which I have no wish to repeat. I tend to agree with my noble friend Lord Thomas. Certainly, I thought that it referred to the building, but I also heard what the noble Lord, Lord Elystan-Morgan, said; namely, that it was referred to on that occasion as a sister Parliament. Perhaps we should say that there is not clarity in some respects. I know that this was hyped up in the press before the opening of the building and that "discussions" took place about this issue. I will go no further than that.
	The amendment is correct about opinion polls. We want the Assembly to have its say. We certainly support the separation of powers to which the Minister has referred—the executive from the legislature. The Minister has put it into context: he believes this to be an executive function. Many of us will remember the polls on whether pubs should open on Sundays in Wales. I will not go into that, but one would expect the Assembly to have had a view on such things. However, without more ado, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Clause 64 agreed to.
	Clauses 65 to 67 agreed to.
	Clause 68 [Contracts]:

Lord Evans of Temple Guiting: moved Amendment No. 47:
	Page 37, line 41, at end insert "but subject to any appropriate modifications"
	On Question, amendment agreed to.
	Clause 68, as amended, agreed to.
	Clause 69 agreed to.
	Clause 70 [Financial assistance]:
	[Amendment No. 48 not moved.]
	Clause 70 agreed to.
	Clauses 71 to 73 agreed to.
	Clause 74 [Voluntary sector scheme]:

Lord Anderson of Swansea: moved Amendment No. 49:
	Page 40, line 39, at end insert "for approval"

Lord Anderson of Swansea: In speaking to Amendment No. 49, I shall speak also to Amendment No. 50. These amendments were originally solely in the name of my noble friend Lord Davies of Coity, who much regrets that he is unable to be with us today. At Second Reading, he gave notice that he would table amendments concerning the Voluntary Sector Partnership Council. He also showed his personal commitment to the voluntary sector in Wales and gave the relevant background, which I adopt: in short, the vital role played by voluntary organisations in our national life and its ability, rather like a well known brand of beer, to touch parts which other parts of the public sector are unable to do. He also mentioned the role of the Wales Council for Voluntary Action (WCVA).
	Amendment No. 49 simply adds the words "for approval" to Clause 74. It strengthens the role of the Assembly in the endorsement or otherwise of the annual report on how the voluntary sector scheme has been implemented. Amendment No. 50 should be considered in the context of earlier clauses. The relevant section of the Explanatory Notes is headed, "Inclusive" approach to exercise of functions. Clause 72, which follows, requires Welsh Ministers to establish a partnership council for Wales with members of local authorities and other public sector groups, such as the police, the fire service and so on. Clause 72 includes the partnership council of Wales in the Bill. In my judgment, what is important for the public sector is also to be considered for the voluntary sector, given its importance in our national life.
	Clause 74 sets out the obligation on Welsh Ministers to make a scheme for the voluntary sector. Mutatis mutandis, this mirrors the obligation on the Assembly set out in Section 114 of the Government of Wales Act 1998. The resultant scheme provided inter alia for the establishment of a Voluntary Sector Partnership Council as the principal bridge, means or instrument for dealings between the Assembly and the voluntary sector. The partnership council has therefore provided an opportunity for consensus to be reached on major issues of policy and detail affecting the voluntary sector and its relations with the Assembly. Because of the involvement of all four parties in the Assembly, it has also helped to promote the voluntary sector among various local groups in Wales. Most valuable has been the tripartite membership—the voluntary sector, Ministers and Assembly Members—who have learnt by practice to work together in a spirit of co-operation.
	That spirit of co-operation has led to a number of successes, including the establishment of the Criminal Records Unit in 2003. This unique body, which is run by the WCVA and is funded by the Welsh Assembly Government, provides the voluntary sector with access to the Criminal Records Bureau. It has also led to the strengthening of links with United Kingdom voluntary organisations operating in Wales. Following the withdrawal, which we all recall, I am sure, with regret, of the Children's Society from Wales in 2003, the partnership council took the lead in organising a seminar from which emerged the code of principles.
	Thus, the amendment seeks to maintain the partnership council by adding this to the Bill and by providing an assurance about its future. In my judgment, a precedent has been set by Clause 72, entitled, Partnership Council. It recognises the success of the voluntary sector in Wales under the partnership council and seeks from the Government a positive signal that they value the work of the voluntary sector.
	I have now seen a letter, dated 25 April, from the relevant Cabinet Minister, Jane Hutt, the Minister for Assembly Business, Equalities and Children, to Win Griffiths of the WCVA, which I concede throws a new light on the amendment. For the benefit of those Members of the Committee who have not seen the letter, perhaps it would be helpful if I quoted the relevant paragraphs. Following a meeting between Jane Hutt and representatives of the four parties in the Assembly who agreed on certain points, she wrote:
	"The first point is that all four parties can affirm their commitment to a productive relationship with the voluntary sector, both from the point of view of the Welsh Ministers and from the point of view of the Assembly. We all four agreed that we wanted this relationship to work and that it was the commitment to making it work which mattered most".
	The second point is the relevant one in respect of the proposed amendment:
	"The second is that all four parties would wish to maintain a Voluntary Sector Partnership Council following separation. However there are reservations about setting these arrangements in statute and indeed about committing to maintain the status quo, totally unchanged. If the role of the council is to advise and act as a 'critical friend' to Ministers, not all opposition parties may think it appropriate for their Members to sit on a body advising Ministers. There are other models for ensuring cross-party engagement and engagement with the Assembly as a scrutinising body and legislature which we should like to consider further and which we would encourage the sector to think about too".
	Clearly the views set out in that letter, which was only recently received, should be respected.
	Notwithstanding that letter, I would welcome my noble friend's response. Is there, in his judgment, something to be lost in abandoning the tripartite relationship which has acted with success in the partnership council since 1998? I concede that there is a new dispensation with the separation, but could not something be lost by abandoning that tripartite principle?
	What value do the Government attach to the role of the voluntary sector in Wales? I am intrigued by what is said in that letter, pregnant with meaning, about other models that may be pursued. What other models, in my noble friend's judgment and that of the Assembly, could be relevant to the working out of what is for us in Wales an important relationship: that between the voluntary sector, which carries out such valuable work, and the Welsh Assembly Government, both the executive and the legislature. I beg to move.

Lord Crickhowell: I want to make the briefest possible intervention to raise a simple point. I would be grateful if the Minister could respond to it, so that he might shorten proceedings at a later stage. Amendment No. 49 raises whether the Assembly is in a position to give approval to the papers laid before it. The same point applies or could have applied to Clause 73, which we have just passed. It applies to Clauses 75 and 76, although there is a Liberal Democrat amendment on that which raises the parallel point. It also applies to Clause 77. It would be useful if the Minister could comment on this approval question, as it attaches to all the clauses; then we need not raise the issue again clause by clause.

Baroness Finlay of Llandaff: I am grateful to the noble Lord for having read out the relevant part of the letter from Jane Hutt on the amendment, because in principle I support the thoughts behind the amendment. Indeed, the spirit of co-operation is enormous and the contribution of the voluntary sector is huge. I must declare an interest, working in the hospice sector, but I also sound a little warning that if we are not careful to ensure that there really is a good mechanism for the Assembly and the voluntary sector—I personally would like to see something in the Bill—there is a danger of different parts of the voluntary sector going and doing their own thing. Some parts of the voluntary sector are driven by powerful personalities with enormous energy that can be harnessed for the public good but, unfortunately, when they compete for funds they can have a tendency to compete directly with a similar provider adjacent to them, which can create local friction.
	The Assembly has done an astoundingly good job at harnessing the energy of all the voluntary sector providers. I want to make sure that that is not lost. While the wording of the amendment may not be perfect, I hope that the Minister will agree to consider the principle behind it to ensure that what has been achieved is not lost as the Bill passes.

Lord Livsey of Talgarth: I am sure that this is the right moment to congratulate all those involved in the voluntary sector in Wales. They do a fantastic job, often with few resources. I am involved with about 10. I will not list them, but it is important that they receive maximum support. I support the amendment and the sentiment behind it, particularly the point made by the noble Baroness, Lady Finlay, that an overarching co-ordinating strategy that does not cause duplication of effort is needed. The Minister would be advised to consider that point and discuss with the Assembly Members what they are going to do in this situation. Proposed new subsection (2) of Amendment No. 50 refers to:
	"(a) the Welsh Ministers,
	(b) the Deputy Welsh Ministers, and
	(c) at least eleven Assembly members reflecting party balance".
	I wonder whether there will be a proper party balance in the circumstances. I say no more than that.
	I congratulate the Wales Council for Voluntary Action, which does some very good work, including work with co-operatives. It has some good staff and good co-ordinating skills. In principle, we support the idea but we certainly do not want to be too prescriptive to the Assembly. None the less, a body is needed to co-ordinate matters in Wales and the voluntary sector.

Lord Brooke of Sutton Mandeville: These are the first words that I will utter on the Bill. They will be extremely brief and modest, but I put it to the noble Lord who moved Amendments Nos. 49 and 50 that the final line of subsection (3) in the proposed new clause would be improved by the addition of a comma after the word "representatives".

Lord Roberts of Conwy: I listened carefully to what the noble Lord, Lord Davies of Coity, said at Second Reading, and I have listened to the noble Lord, Lord Anderson, today on the subject of the new clause. I have also been in touch with the Wales Council for Voluntary Action, which has developed into a significant body over the years and now has some 25,000 voluntary and community organisations on its database. It has made considerable progress. The noble Lord, Lord Davies of Coity, gave more details at Second Reading about the extent of the council's activities, including its involvement in the National Assembly's voluntary sector scheme, which was the direct outcome, as the noble Lord, Lord Anderson, said, of the requirement in Section 114 of the Government of Wales Act 1998 that the Assembly shall,
	"make a scheme setting out how it proposes, in the exercise of its functions, to promote the interests of relevant voluntary organisations".
	As I understand it, the resultant scheme provided for the establishment of a voluntary sector partnership council on similar lines to the body proposed in the new clause. Indeed, it seems that the purpose of the new clause is simply to give a statutory basis for what is in effect already in existence. The voluntary sector, I am told, believes that the Welsh Assembly Government would wish to maintain the current arrangements and that it would be appropriate therefore to include the voluntary sector partnership council and its composition in the Bill.
	As we have heard, the Wales Council for Voluntary Action is a substantial organisation, which employed some 169 staff in the year to March 2005 and received government support towards its core funding of £721,000. It also received Welsh Assembly funding of £14 million and European structural funding of more than £9 million towards specific areas and grant schemes that fell within its scope.
	Presumably, the Wales Council for Voluntary Action can see benefit for itself in the new clause, although—and I suspect that this is what Jane Hutt is getting at—there is an obvious danger that it could be eclipsed in time by the new partnership council. I am sure that it has given this issue its full consideration and perhaps will consider it even further.
	My second point concerns whether it is right that the partnership council should be established by this Parliament in primary legislation or whether it might not be a more appropriate subject for the Assembly to deal with. I can understand a statutory council being necessary when statutory local authorities are involved, but non-statutory voluntary bodies are arguably in a different category. I await the Minister's response with interest.

Lord Evans of Temple Guiting: I begin by associating the Government with the congratulations expressed by the noble Lord Lord, Livsey, to the voluntary sector in Wales on all that it does. I hope that, in answering this amendment, I will give total reassurance to everyone that we value and the Assembly values its close relationship with the voluntary sector.
	I am grateful to my noble friend Lord Anderson and my noble friend Lord Davies of Coity, who tabled the amendment but cannot be with us today, for raising the very important subject of the voluntary sector and giving us the opportunity to discuss it. The partnership between the voluntary sector and the Assembly has been a very positive development and I am sure that all sides of the Committee would wish that productive relationship to continue.
	Amendment No. 49 would have the effect of making the voluntary sector report laid before the Assembly by the Welsh Ministers subject to the approval of the Assembly. With all due respect, I must say that that fails to recognise the consequence of separating the Welsh Assembly Government from the Assembly. The voluntary sector scheme report will set out how the Welsh Ministers' proposals to promote voluntary sector interests were implemented in the previous financial year. It is an executive and administrative document, not a legislative one—that is, something factual and retrospective which the Assembly does not need to approve.
	The current Government of Wales Act 1998 requires the Assembly to make the voluntary sector scheme because the Assembly is currently a single, corporate body. With separation, the functions of making and reporting on the scheme properly become a function of the Welsh Ministers.
	The Assembly will be able to decide for itself how best to scrutinise the performance of the Welsh Ministers in terms of promoting the interests of the voluntary sector. It will be able to do so in a way consistent with its role as a legislative and scrutinising body, by holding the Welsh Ministers to account.
	I recognise the spirit in which this amendment was tabled, which was to signal the importance of the Assembly continuing to be involved in monitoring the interests of the voluntary sector. Given the response from other parties in the Assembly, I am sure that this will be the case, without the need for the change proposed by this amendment.
	Amendment No. 50 would put the voluntary sector partnership council on a statutory footing. By doing so, it would seek to preserve what the voluntary sector values about the current arrangements: namely, that they are cross-party and that the voluntary sector itself, through the Wales Council for Voluntary Action, determines the voluntary sector representation. It is understandable that the voluntary sector in Wales should not wish to lose what it has gained through the many years of good practice and experience under the current arrangements. I know that the Welsh Assembly Government have already given a public assurance if re-elected that they would continue with a voluntary sector partnership council. I can also state with some confidence, because discussions have taken place, that the other parties represented in the Assembly would also wish to have a voluntary sector partnership council to advise the Welsh Assembly Government, as part of the voluntary sector scheme.
	I hope that this provides the reassurance which the voluntary sector was seeking through this amendment. As to the amendment itself, I fear that what it proposes could prove to be unwieldy and would not best serve the interests of the voluntary sector itself post-separation. I hope that, in the light of these firm assurances, my noble friend will feel able to withdraw his amendment.

Lord Anderson of Swansea: I concede that part of the motive in tabling the amendments was to seek a signal about the importance of the voluntary sector in the eyes of the Government. To that extent, they have succeeded. Also, I am pleased that there is a consensus in the Committee about the vital role that the voluntary sector plays in Wales. I am extremely pleased by the linkages between individual Members of this House and important parts of the voluntary sector.
	On Amendment No. 49, I note what the noble Lord, Lord Crickhowell, said about saving time at a later stage if it were debated. It relates to what is the appropriate role for the Assembly. The annual report will, no doubt, be sent to a vast array of bodies in Wales. Surely, the Assembly should have a somewhat different status from the individual voluntary groups. The question is how this document should be dealt with—should there not, for this document and other matters, be some mechanism for seeking to endorse, approve or not approve those reports that are put before the Assembly?
	Amendment No. 50 relates to the partnership council. There may be some fear that, because, under the terms of the Bill, there is to be a partnership council involving local authorities, it might, in the words of the noble Lord, Lord Roberts, "eclipse" the existing council for voluntary organisations.
	I note the point about the missing comma at the end of Amendment No. 50. I would be prepared to accept an appropriate amendment in respect of the comma, if that were moved. Certainly, my old teacher at Swansea Grammar School would have been extremely upset. I can hear him saying now, "Anderson, you have a great future behind you", in respect of that. Basically, the two amendments have been debated. I thank all noble Lords for their contributions. I shall reflect on the helpful response given by my noble friend the Minister and, at this stage, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn
	Clause 74 agreed to.
	[Amendment No. 50 not moved.]
	Clause 75 agreed to.
	Clause 76 [Regulatory impact assessments]:

Lord Livsey of Talgarth: moved Amendment No. 51:
	Page 42, line 6, leave out from "must" to end of line and insert "have it approved by the Senedd by a simple majority of those voting before it comes into effect"

Lord Livsey of Talgarth: Amendment No. 51 refers to Clause 74 which concerns regulatory impact assessments. It is an important matter as, if the regulations and legislation are not working properly, they have to be sorted out and expedited. The ability of the Assembly to attempt to resolve these matters in the interests of the effective governance of Wales is very important indeed. Assembly Members may, in some circumstances, be the victims of inadequate regulations which may have an adverse impact on their constituents. If one looks at the regulatory impact assessments, our amendment would require that a code or revisions under subsection (5) must be approved by a simple vote of the Assembly. We wish to ensure that the Assembly gets its head around this matter and, indeed, agrees with the code. This would clearly be an improvement on what happened previously and which necessitated this Bill. We believe that the Assembly can express an opinion in this respect on regulatory impact assessments.
	Amendment No. 52 refers to sustainability. Under it, the copy of the report would have to be approved by the Senedd by a simple majority of those voting. Sustainable development is a very important function of the Assembly and was enshrined in the 1988 Act. For example, a report could contain many statements or evaluations of projects in Wales which might not in fact be sustainable. I can give your Lordships two examples of this. One is the much talked about Severn barrage. We know of the excellent work done in Swansea University on tidal lagoons. There is clearly an issue as to whether the tidal lagoon idea along the banks of the Severn estuary might be a better and more sustainable answer than the Severn barrage, while producing the same amount of power. That is an important issue.
	Another current issue—which is outside the Assembly's power but, none the less, it could pass an opinion on it—concerns the gas pipelines that are being taken from gas holders in Milford Haven through national parks. That could affect the sustainability of the national parks and would certainly have an impact on the landscape. If the report does not meet sustainable development objectives, the Assembly may wish to reject it. Alternatively, however, if courageous decisions have been made which are contained in the report, it can rightly be endorsed by the Assembly which can express its opinion through a vote. I beg to move.

Lord Roberts of Conwy: I quite understand the anxiety behind these amendments which once again show concern that the Assembly should play an active role in approving or disapproving ministerial action in the context of regulatory impact assessments. How else is the Assembly to scrutinise ministerial activity and properly hold Ministers to account? That is the question. While the principle of the Bill is to transfer powers and functions to Ministers, the Assembly must be afforded every opportunity to hold them to account for their subsequent actions. This is clearly going to be a very important part of the new Assembly's role—a far bigger part than it was in the past under the old regime.

Lord Evans of Temple Guiting: Amendment No. 51 would require Assembly approval of the regulatory impact assessment code when published or revised by Welsh Ministers. Similarly, Amendment No. 52 would require the Welsh Ministers to obtain the approval of the Assembly for their report into the effectiveness of Welsh Ministers in promoting sustainable development. However, these amendments, as with the previous group of amendments we have just discussed, fail to recognise the consequences of separating the executive and the legislature—something which has been warmly welcomed by this House.
	A code of practice is an executive document; it is not one which requires Assembly, and therefore legislative, approval. Clause 76 places a requirement on the Welsh Ministers to make a code of practice setting out their policy on regulatory impact assessment with respect to relevant Welsh subordinate legislation. This carries forward, in essence, the requirement in Section 65 of the Government of Wales Act 1998 for subordinate legislation procedures to include provision regarding regulatory impact appraisals. It will ensure that there is a clear statement of how the costs and benefits of complying with subordinate legislation made by the Welsh Ministers will be assessed, including consultation and when such assessments will be made.
	The provisions in Clauses 74 and 75 ensure that the Welsh Ministers will take account of the interests of business and the voluntary sector in addition to the specific requirement on regulatory impact assessments. These are explicit duties—more explicit than is the case with Ministers elsewhere in the UK—and the Assembly will be perfectly capable of holding the Welsh Ministers to account for the way they exercise those duties.
	The report containing an assessment of the effectiveness of the scheme in promoting sustainable development is also an executive and a retrospective document and, as such, does not need Assembly, that is to say legislative, approval. I hope that in the light of this explanation, the noble Lord, Lord Livsey, will feel able to withdraw his amendment.

Lord Livsey of Talgarth: I thank the noble Lord, Lord Roberts of Conwy, for his support of the principles lying behind the amendment. From what the Minister has said, I understand that obviously the separation of powers comes into this. Indeed, he has enlightened us by saying that the code of practice is an executive function and an executive document. I would wish to read carefully what he has said, although it certainly seemed to me to be a clear statement to that effect.
	There is another matter that I wondered about. The Minister also stated that Welsh Ministers would be held to account and would have explicit duties. Some of the subjects, particularly in RIAs and sustainable development, can be extremely controversial and, indeed, great differences of opinion can take place. Given what he said, therefore, I hope that the Assembly will hold Ministers to account and that there will be an effective method for it to do so in a democratic fashion. That being the case, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Clause 76 agreed to.
	Clause 77 agreed to.
	Clause 78 [Sustainable development]:
	[Amendment No. 52 not moved.]
	Clause 78 agreed to.
	[Amendment No. 53 not moved.]
	Clauses 79 to 87 agreed to.
	Schedule 4 agreed to.
	Clauses 88 to 91 agreed to.
	Clause 92 [Assembly Measures]:

Lord Kingsland: moved Amendment No. 54:
	Page 50, line 23, leave out subsection (1).

Lord Kingsland: I rise to move Amendment No. 54 and to speak on the Questions whether Clauses 92 to 101 and 108 shall stand part of the Bill. I trust that the fact that I seek to remove the whole of Part 3 from the Bill will in no way undermine the genial and harmonious atmosphere in which today's deliberations have been conducted.
	Essentially, Part 2 of the Bill is a statutory system for devolving power to the Welsh Assembly, on a piecemeal basis, by Orders in Council. It is a two-stage process. Stage 1 delegates to the Welsh Assembly by Order in Council the power to legislate on certain matters within certain fields which are stipulated in Schedule 5 to the Bill. Stage 2 gives the Welsh Assembly the power to make what are called "Assembly Measures", as long as those measures are within the scope of the authority delegated by the process in stage 1.
	In essence, Assembly measures are primary legislation; but they do not obtain that character until they are confirmed by an Order in Council. These Orders in Council have two functions. At stage 1 they have an authorising function and at stage 2 they have what I would term a "camouflaging" function. At stage 1 they authorise the scope for the Welsh Assembly's legislative power; at stage 2 they camouflage the fact that what the Welsh Assembly is really doing is making primary legislation. Your Lordships should be in no doubt about that.
	In my view, one needs inordinate patience in reading Part 3 to reach the analysis that I have just put before the Committee. One would think that Part 3 would start off with stage 1 and then, having completed it, move on to stage 2. In fact, Part 3 starts with stage 2, wanders into stage 1 and in the end wanders back into stage 2. One might take the view that, when the Minister was settling these provisions, he either intended to obfuscate or had just had a very good lunch; indeed, it might have been a mixture of the two.
	We are opposed to Part 3 for a number of reasons. The first reason is that it is not authorised by a referendum. Like, I suspect, many of your Lordships, I am not an enthusiast for referendums. I believe that our long-standing system of representative government is the best way of taking all decisions in our country. But the fact is that the existing state of the devolved Assembly is the result of a referendum, so it must follow that any change in that existing state—any deepening of devolution—should also be mandated by a referendum. Such a procedure is set down in Part 4 of the Bill.
	One might, therefore, well ask why we need Part 3 at all. Why cannot we simply move to Part 4, have a referendum and, if the Welsh people authorise the degree of devolution, so be it? But that is not what will happen. As your Lordships know, this Bill has been extensively debated in another place. On Report, the point about a referendum was put to the Minister, Mr Ainger, in as direct a manner as possible. Mr Ainger's response was:
	"The purpose of referendums is to establish people's view on a change . . . It is pointless to hold a referendum if one knows that one is not going to achieve the change that is its purpose".—[Official Report, Commons, 28/2/06; col. 179.]
	In other words, in the view of the government Minister, referendums are valid only if they produce the result desired by the Government. I would have thought that the point of a referendum was to find out what people think. However, the conclusion that Mr Ainger and the Government have reached is that, since the referendum will not produce the result that they want, they will not have a referendum.
	Has that deterred them from making any change to the way in which Wales will be governed in the future? Certainly not, because we have Part 3, without a whisper of a referendum to authorise it. That point was also put to Mr Ainger in the debate in another place. Mr Dominic Grieve asked him:
	"Why does he think that part 3 is desired by the people of Wales?".
	Mr Ainger replied:
	"Because they voted for a Labour Government and a Labour manifesto".—[Official Report, Commons, 28/2/06; col. 180.]
	It is true that they voted for a Labour Government and it is true that the Labour Government had a manifesto. But there is not a scintilla of a reference in it to the procedure laid down in Part 3. Indeed, during the time leading up to the manifesto, no Minister or anyone else, as far as I am aware, made any reference whatever to any procedure remotely like the procedure in Part 3. It is true that there was an important debate about Welsh devolution in the months running up to the general election but that was in relation to the commission chaired by the noble Lord, Lord Richard; and the proposals that he made were a long way from what is contained in Part 3. In my submission, the argument—just in case the Government are inclined to include it in their response—that it was in the manifesto is no argument at all.
	The fact that Part 3 is not authorised by a referendum is only one reason why we think that it does not belong in the Bill. There are two others of equal weight. The first is that the act of delegation in stage 1 is to a very large extent unscrutinised by Parliament in Westminster, either in another place or in your Lordships' House. We are talking here about an Order in Council process; we are not talking about a process that concludes in an Act of Parliament.
	How will that process work? Your Lordships will look in vain at this Bill to find that out. In another place, Mr Ainger did to some degree flesh this matter out. Apparently, what is intended is something approaching the following. The Welsh Assembly will make a proposal for a draft Order in Council to delegate certain legislative powers to the Welsh Assembly within the fields capable of delegation under Schedule 5. That draft order will be laid before the Welsh Assembly; but it is envisaged that before it is laid extensive discussions will take place between the Welsh Assembly Government and Whitehall—I presume that "Whitehall" means the Secretary of State for Wales. Once that draft order has been passed by resolution, it, together with the resolution, will appear both in your Lordships' House and in another place.
	However, the order will not be subject to any form of legislative amendment. It will be subject to something that Mr Ainger called pre-legislative scrutiny; but nowhere in the Bill is the nature of this pre-legislative scrutiny defined. The honourable Minister suggested that it might include consideration by the Welsh Affairs Committee and perhaps also by the Welsh Grand Committee. The conclusions of both those institutions would be dispatched to the Welsh Assembly in the hope that it might take them into account when it reached a final conclusion on the draft order. The final draft order, after further discussion with Whitehall, is then tabled as an Order in Council both in another place and in your Lordships' House. In the normal way of affirmative resolutions, we will have the opportunity to say yes or no to a text that we cannot amend. In my submission, this is a degree of scrutiny that falls well below the standard one would expect for such a dramatic constitutional change. That is the second reason why we wish to expunge Part 3 from the Bill.
	The third reason is that if one looks under the skin of what is proposed in Part 3, one sees that what is happening in reality is that delegation—at both stage 1 and to some degree stage 2—is not from this Parliament to the Welsh Assembly, but from this Parliament to the executive, from this Parliament to the Secretary of State for Wales. Throughout the process under stage 1, the Secretary of State for Wales is intimately involved in shaping the draft order. Indeed, it says expressly in the Bill that if in the end he is not satisfied with the draft order he can refuse to table it.
	This is a plain shift of power from the legislature to the executive. Moreover, even when the Welsh Assembly is authorised to produce Assembly measures, at the end of the day, even when that process is completed, it is still the job of the Secretary of State for Wales to table an Order in Council before it becomes the law of the land. It is almost as if this Bill is being used as a pilot for the Legislative and Regulatory Reform Bill, which your Lordships are expecting soon in this House.
	I would like to make one further observation in this context. At stage 2, once the Welsh Assembly has the power, the matter will go through to its conclusion. If the political parties that dominate Welsh government and the political party that dominates the Government of the United Kingdom are of the same hue, one can see them being reasonably co-operative. But what if the Welsh Government in the future are of one political complexion and the United Kingdom Government of another political complexion? How on earth is it envisaged that the process laid down in the Bill could possibly work in any manner that could reasonably be described as harmonious? That said, I wish to emphasise again that the third reason that we are opposed to Part 3 is because of the amount of power that is switched from legislative bodies to executive bodies.

Lord Thomas of Gresford: We on these Benches oppose the amendments. We start on a different basis from the Official Opposition. It is our view, and always has been, that the Welsh Assembly should have the same legislative competence as the Scottish Parliament.

Lord Kingsland: I want to make it absolutely clear that we are not against that solution. We are against it without a referendum making that grant.

Lord Thomas of Gresford: Yes, I follow what the noble Lord says, but we are dealing with the Bill in front of us. I do not see anything in the amendments so far tabled by the Conservative Party that would indicate that they pursue the same line as us. We start with the basis that there should be full legislative competence for a Welsh parliament save in reserve matters. That is an issue that we will flesh out in later amendments. Once we have arrived at that position, we have to decide what we will do about the Bill before us.
	There is undoubtedly a tortuous procedure to adopt—a word used by the noble Lord, Lord Richard, to describe it was "involved". We by no means consider that the numerous stages and processes set out in the Bill—namely, the application for the Order in Council, followed by putting through a measure of the Assembly—amount to a satisfactory solution. However, it is a step forward. We have always wished to see devolution as a process and not as an event. We wish to see steps taken that lead towards the goal which I personally have been advocating for something like 42 years. It will take more than this Bill to stop me advocating full powers for a Welsh parliament.
	Accepting many of the criticisms that have been made by the noble Lord, Lord Kingsland, and certainly accepting that this machinery is not at all as clear-cut as it could be, we nevertheless oppose these amendments.

Lord Crickhowell: I acknowledge that the noble Lord and many of his friends have been pretty consistent on this issue, which is why I find it rather strange that they are content with this extraordinarily complex and unsatisfactory set of arrangements, which has been introduced almost entirely because the Labour Party in the other House is divided and because of the fact, already referred to by my noble friend Lord Kingsland, that Ministers do not believe they could win a referendum.
	My position, which I made clear at Second Reading, is that I would go straight to Part 4 and give the people of Wales those powers, if that is what they want. I acknowledge that my views were rejected by the people of Wales at the last referendum, by a narrow margin. I fully accept that verdict. I made it clear at Second Reading that I do not want to go back. However, if you are substantially going to change the devolutionary step that was approved by the Welsh people on that occasion on the basis of information clearly put before them, you must have a further authority.
	I would not go down the halfway house route. If the Welsh people want to take the devolutionary step and have the same powers as people in Scotland, let them do it, but let us get on with it. Indeed, as regards the suggestion that so far we on the Conservative Benches have done nothing to indicate that we really mean that, I have tabled amendments that would make a referendum easier. I have tried to remove some of the blocking mechanisms that stand in the way. I have said that if a clear majority—rather than a two-thirds majority—of the Assembly want to go down that road, it should not be possible for the Secretary of State to block it. Let us have no aspersions cast on our willingness to go down that road. Indeed, a number of my colleagues in another place made that very clear. Mr Gummer made a passionate speech in which he said that he would like to go down that road and get on with it. There are many other examples of that.
	I refer to the power that we are discussing. Incidentally, one of the most curious arguments advanced by Ministers in another place against a referendum is that the scheme that the Government have devised is so complicated that no one will understand it. Apart from the feeling that it was pretty insulting to the people of Wales to be told that they would find the whole thing much too difficult to understand, the general proposition was included by the Labour Party in its manifesto but in such general terms—I have the wording of the manifestos in front of me—that no one could have expected the Welsh people to understand what was actually proposed. Surely, if the Welsh people are to be told that they have given a matter their approval, they should have clearly put before them an explanation of what it is about.
	I do not want to go over the ground that many of us covered in great detail at Second Reading, but this is not a modest measure. It is a Trojan horse measure that enables very wide powers to be taken step by step so that we can go down the full road to the kind of legislative Assembly that the Liberal Democrats say they want without a referendum at all. We can get there step by step under this arrangement. That is one of the reasons why we object to it. One should have no doubt about the extent to which this measure can widen the powers and scope of the Assembly and its Ministers. The report of the Delegated Powers and Regulatory Reform Committee is very helpful in this context. As I do not think that its comments have been quoted before in our debates, I propose to quote some of them now. One of the points the committee emphasises is the breadth of the measure. It explains that the competence of the Assembly is defined by reference to 20 fields set out in Schedule 5. Paragraph 24 of the report points out:
	"There is no limit to which fields may be added, or which matters within each field. The fields could even be more extensive than the list of subject headings in Schedule 7 (which relates to Part 4 - Assembly Acts)".
	At paragraph 26 of the report the committee reasonably states:
	"It is for the House to decide whether it is appropriate for such a degree of competence to be conferred by subordinate legislation. It is the apparent purpose of the bill for Part 3 to be a gradual process and for Part 4 to be a more definitive settlement. We consider that an incremental process of increasing the Assembly's competence need not necessarily be achieved by a series of bills. The idea of areas of competence being varied by subordinate legislation is precedented in the Scotland Act 1998".
	The committee goes on to say,
	"What is different here is the proposed scale of the use of the power: the Scotland Act 1998 itself defines the devolution settlement and the Order in Council power may be used to modify it; in contrast, it is here proposed that Orders in Council will define the competence of the Assembly".
	In other words, by this piecemeal measure and without the approval of the Welsh people taken in a referendum, we are going down the full legislative route. That is wholly wrong and wholly improper. We should be either honest about the matter and face up to it—we want full legislative powers given to the Assembly—and deal with it by the proper legislative route, or we do not. It seems to me wholly wrong to abandon the opportunity for anyone in this House to carry out the vital process that it does so well of looking at the detail of legislation—the devil is in the detail and cannot be covered by pre-legislative scrutiny—and allow this vast extension of power without proper authority from the people of Wales. I support the amendment.

Lord Elystan-Morgan: I suspect that all those who have taken part, and will be taking part, in this debate will run true to form regarding their views on devolution. Mine go back a very long way, perhaps even longer than those of the noble Lord, Lord Thomas of Gresford. I was a very young boy when I decided that, so far as I could understand, the gaining of a home rule parliament for Wales was not only to be desired but a very condition of the continued existence and development of the nationhood of Wales, and I have not changed my mind.
	The noble Lord, Lord Kingsland, said that the basis of his case was that we are dealing in Part 3 with primary not subordinate legislation. That is the main plank of his platform. However, the Explanatory Notes deal with the matter very differently. I hope that I may have the Committee's indulgence to quote paragraph 318 of the Explanatory Notes, which states:
	confers on the Assembly the power to make a type of subordinate legislation in relation to Wales called 'Measures of the National Assembly for Wales' in English, or 'Mesurau Cynulliad Cenedlaethol Cymru' in Welsh. They are referred to in this Bill as Assembly Measures".
	Then there follow these words:
	"The ultimate right of Parliament to legislate in relation to Wales, even in principle on a matter over which legislative competence has been conferred on the Assembly, is preserved".
	There can, therefore, be no doubt at all that we are dealing with subordinate rather than primary legislation. It is casuistic to argue on that point.
	Under the Local Government Act a county council has wide powers enabling it to adopt model clauses of legislation. Does that make it a primary legislature? I doubt it. I do not in any way wish to disturb the placidity of the waters of agreement, consent and goodwill that have existed in relation to this Bill by anything that I say tonight but I am afraid that, so far as the Conservative Party is concerned, it has been reluctantly dragged into accepting devolution at all and it is essentially a rearguard action. What one has here is the determination of the Conservative Party to put a stop to the whole process of what one might describe in one way as devolution and in another way, so far as the Welsh Assembly is concerned, as evolution.
	If Part 3 were taken out altogether, the Welsh people would be deprived of a real advantage: what I described at Second Reading as a bridge between the present situation and the situation where the people of Wales can consider whether they would wish to take up the enabling powers that will essentially have created the foundations of a Welsh parliament. The experience over a few—I hope not too many—years would enable the Welsh people to judge in a mature way exactly what these added powers mean and what they lead to. I do not for a moment believe, therefore, that the main case put forward by the noble Lord, Lord Kingsland—that one has broken over a fundamental boundary—holds any real truth at all.
	We are still dealing with the area of subordinate legislation. The powers of this House and of the other place remain absolute. The capacity to set up any number of appropriate bodies, to deal in detail with every aspect of each of these proposals, is infinite. I do not see, therefore, that it is a case of robbing either House of its essential sovereign authority. The Richard commission concluded that a referendum was entirely necessary for Part 4. Why? That is because Part 4 sets up, essentially, a home rule parliament—nothing less than that. Part 3 is a path towards that. If the Conservative Party were to take the view that every evolutionary advance made by the Welsh people for the Assembly must be the subject of a referendum, that would be nonsense. Since the Assembly was created in 1998, there have been, large and small, hundreds of aggregations to its authority. Does one then hold a referendum and ask, "That is what has happened over seven years. Are you, the Welsh people, content with that or not?"? With very great respect, there is a fundamental inconsistency in the attitude of the Conservative Party. I was a Member of the other place in 1972, as were the noble Lords, Lord Crickhowell and Lord Roberts of Conwy, when the European Communities Act was passed. I do not remember the Conservative Party at that time asking for a referendum on such a fundamental matter. Indeed, it stood unanimously against such a referendum. I suggest, therefore, that although there are old echoes here of Conservative opposition to devolution and evolution in relation to a Welsh Assembly, this amendment should be rejected.

Lord Norton of Louth: I did not intend to speak in this debate, but I feel I must respond to the noble Lord, Lord Elystan-Morgan. His argument that this is a form of subordinate legislation is fundamentally flawed. He is resting on the ground that this Parliament retains the absolute right to legislate for Wales. But that very right is retained in respect of Scotland, which would also make that subordinate legislation, therefore that completely undermines his argument.

Baroness Carnegy of Lour: I have not joined in this debate at all, but I was a member of the Delegated Powers and Regulatory Reform Committee for four years. I am absolutely convinced that it is not making a political point; it is not taking an attitude for or against the Welsh Assembly. The point is whether this House should agree to primary legislation, an unlimited amount by degrees, taking place because of an order from Westminster. I think it was my noble friend on the Front Bench who said that it was as if the regulatory reform Bill coming to this House were already in place. It is a major step for secondary legislation to bring about primary legislation.
	While I have much less experience than the noble Lord, I would say to him that this is a constitutional point. I rather resent that he is entirely politicising this, saying it is a Conservative fetish because it does not like the Assembly. I am fully in favour of the Assembly—the Welsh people voted for it—just as I am fully in favour of the Scots Parliament. I am fully in favour, if the Welsh people want it, that they should have more power to do primary legislation. I am surprised that a very distinguished Liberal Democrat lawyer from the Front Bench has said that because this is a step towards more power to the Welsh Assembly he will not stand in the way. To my mind, this is a constitutional point, a legal point, and a very big one. I hope we will not have a Division because I suspect the amendment would be defeated. I do not know what my noble friend is planning to do, because it is a huge issue. Westminster would be making a very big mistake if it agreed to this.

Lord Davies of Oldham: This has been a fascinating debate. The noble Lord, Lord Elystan-Morgan, has certainly taken away from me any necessity to make observations about political differences with regard to this amendment. I am all the more grateful that it has come from the Cross Benches, because it means that my criticism will therefore be muted as far as the Conservative Front Bench's present position is concerned. Let us not make any bones about it: if this amendment were carried, the Bill would be gutted. It would effectively delete the process whereby additional powers are offered to Wales.
	The thrust of the point made by the noble Lord, Lord Kingsland, was that there was no referendum to back this up, and that therefore there was no democratic basis on which the Government ought to proceed in these terms. The Conservative Party did not think a referendum was necessary on entry into Europe, it did not think that Scotland needed a referendum, it does think that additional powers to Wales can be processed and consented to by this Parliament only by a referendum. That seems a late conversion to this concept of how one achieves popular support for measures. There is another route, which the Conservative Party and other parties generally follow, and which the Labour Party took with regard to this legislation: to put in its manifesto that it intends to enhance the legislative powers of the National Assembly. That is what Part 3 sets out to do.
	I heard what the noble Lord, Lord Edwards, said—I am awfully sorry, I meant the noble Lord, Lord Crickhowell; I was going back to the old days. I think I was guilty of not getting his first name right on another occasion and now I have failed on his title, so I am doubly apologetic. The noble Lord, Lord Crickhowell, referred to this position. With the concept of the Order in Council we are not producing an innovative approach to extending powers; Scottish powers would be enhanced through Order in Council and it is how Northern Ireland has its powers defined. So there is nothing exceptional about the approach, although I recognise that noble Lords opposite have reservations about how the consultation process is developed prior to these powers. We had a debate on this point at our previous Committee sitting. I want to develop and, I hope, answer that point in a moment, but I will give way to the noble Lord, Lord Crickhowell.

Lord Crickhowell: The noble Lord asserts that he has answered the point, but I have already pointed out to him that the much respected Delegated Powers and Regulatory Reform Committee has said that what is different here is the proposed scale of the use of the power. The Scotland Act 1998 defines the devolution settlement, and the Order in Council power may be used to modify it. In contrast, it is proposed here that Orders in Council will define the competence of the Assembly. That is an enormous difference, and the noble Lord should not try to pretend that they are the same thing.

Lord Davies of Oldham: The committee noted—the noble Lord was fair enough to quote this point but I want to use it as evidence for the Government's case—that use of the new mechanism would be an incremental process, with government and Parliament deliberating at each step on proposals to confer legislative competence over specific matters. It would be for Parliament to decide on a case-by-case basis what legislative competence should be conferred on the Assembly as the draft Orders in Council come forward. The important point, which is recognised by the committee, is that each proposal for new legislative competence is subject to the necessary parliamentary approval.
	I recognise, and the noble Lord, Lord Crickhowell, is absolutely right, that the committee chaired by the noble Lord, Lord Dahrendorf, approached this issue with its customary due diligence and examined it very carefully. But the noble Lord will not be surprised to learn that we regard the position that the committee has taken up as one to which the Government are able fully to respond, because we are indicating that parliamentary approval is necessary at each stage. What is parliamentary approval for? Not for a Secretary of State's arbitrary act—it was suggested by the noble Lord, Lord Crickhowell, that somehow these Orders in Council were the property of the Secretary of State. The Secretary of State for Wales is unlikely to stand idly by while issues of this moment are being discussed. Of course he would expect to be consulted; I do not know how we would think he was fulfilling his duty as Secretary of State for Wales if he were not involved. But the orders come to this House after the democratic body in Wales has decided that they should do so. If the democratic Assembly in Wales decides that they should not go forward, they do not. What can be arbitrary about that when an Order in Council mechanism is being used—but one that is actually to convey powers that a democratically elected Assembly is seeking? That is the basis of Part 3.

The Duke of Montrose: I am most grateful to the noble Lord for giving way. I wonder whether he could clarify something for me. As I understand it, the Scotland Act is limited by Schedule 5, and we frequently amend Schedule 5 by statutory instrument. Has there been an Order in Council amending other parts of the Scotland Act, or could there be such, or have there been any Orders in Council involved?

Lord Davies of Oldham: The noble Duke is absolutely right in his definition; I am merely describing what the Welsh counterpart to that is. The Orders in Council for Wales are not arbitrary, authoritarian acts of an executive; they are the democratic will of the National Assembly being translated to this Parliament for both Houses to consider whether those powers should be conferred. I am merely indicating that, far from the Opposition's case that what is involved here is an arbitrary process that requires a referendum, what we are involved in is a democratic process that fulfils the objectives of the Welsh people.
	The Conservative Party in the other House went a little further than the noble Lord, Lord Kingsland, has done today. It faced up to the fact that there are some difficulties with regard to the referendum, because we would have to work out what kind of question could be put to the Welsh people, who enjoy some powers but now may wish to increase those powers; not as a total package, but incrementally. The shadow Attorney-General had a shot at the question that should be put to the Welsh people:
	""do people wish to be governed by Order in Council moderated in its detail by the Welsh Assembly".—[Official Report, Commons, 9/1/06; col. 119.]
	What kind of participation in a referendum does any noble Lord think would take place under a question of that degree of abstruseness? That is the nature of the problem. What we have already is a Welsh Assembly with powers. There are good reasons and pressures from within the Welsh community for additional powers, but they are not powers that one can put into a total package and say, "This is the question before the Welsh people—do you want this in its totality?". It is not like a European Community referendum, which of course the Conservative Party did not offer; it is not like a referendum for the Scottish people, which the Conservative Party never offered. It is different from those, and that is why the Government are saying that this is not the kind of question that is subject to a referendum. But it must follow due democratic process, and I am identifying the process that will be followed.

Lord Kingsland: I am most grateful to the noble Lord. I want to understand the Government's position. Is it that Part 3 can simply be implemented in the Bill without any need for a referendum? Or is it the Government's position that the only reason why Part 3 should not have a referendum is that the question would be impossible to put?

Lord Davies of Oldham: But it might be the case that the question is impossible to put because the process whereby one develops the interests of the people of Wales is more difficult than the yes/no concept of a referendum question. Why should it be more complex? Is it because the Government have set out to make it more complex? No, because what the Government have created and what has been in place for the people of Wales is a partially devolved Administration and powers that are very limited. We always anticipated that these powers would be subject to pressure for enhancement and improvement as the Assembly developed in its confidence and as the Executive became more and more responsive to the Assembly. The two main concepts are in this Bill; on the one hand separating the executive from the legislature, which is one major principle in the Bill; and secondly how we have a process that is subject to democratic scrutiny both in Wales, which will be the origin of the request, and in the United Kingdom in both Houses of Parliament when the requests come forward.
	It might be said that this looks like a very tortuous road, and a partial road, and one which will take a period of time to deliver. So it will. My noble friend Lord Richard—who has been ever-present with us and now when I want to call him in aid regrettably is not in his place—thought that the process would take up to 2011 before there were additional powers for the Welsh Assembly. Under this process, if the National Assembly so wants it, and if this House and the other place so agree, the process will operate more quickly. It might be said, "This is a pretty complex operation". The noble Lord, Lord Kingsland, who was looking for difficulties rather than helping us with solutions, said, "What about a situation where the Assembly government in Wales might be different in political hue from the rest of the United Kingdom?". That is a concept that beggars belief at present. If that were to occur, the noble Lord is right to identify that there would be greater difficulties. I have no doubt that a government hostile to what the National Assembly of Wales sought to achieve would use this process, through their democratic mandate, to resist some of these proposals. After all, they would have that right; that is how these Orders in Council are meant to be processed.
	Does anybody think that that is more difficult for the people of Wales than what obtains at the present time? Does anybody think that it is easy for the National Assembly and the Executive in Wales to contemplate how they would successfully influence United Kingdom legislation if the Executive who initiated such legislation were from another party? It is a clash of two mandates which we all recognise. In any devolved administration that clash will, from time to time, happen. The noble Lord, Lord Kingsland, cannot say that this process will throw up a great many difficulties when a clash of two mandates occurs. Before this concept was ever devised, differences between the administration of the United Kingdom and that of Wales would throw up just such difficulties.
	Let us make no bones about the fact that the Conservative Front Bench is proposing, for the first time in the Conservative Party's recent history—I cannot refer back to Edmund Burke, though I am conscious that one or two noble Lords may be able to do so—that it is in favour of enhancing the democratic rights of the people of Wales. It is in favour of greater democracy in Wales, subject to a referendum, but it does not have the faintest idea what the question put to the people of Wales would look like, or even if it would be intelligible. The alternative is the Bill; I support and defend the Bill.

Lord Kingsland: I am astonished that the Minister should have left the principle of increased democracy until his peroration. Whatever else Part 3 does, it certainly does not increase democracy. It reduces democracy, both in this Parliament and the Welsh Assembly. Essentially, laws are going to be made by deals struck between the First Minister in Wales and the Secretary of State for Wales. They will produce legislative proposals which cannot be amended in either the Welsh Assembly or this Parliament. Why on earth should that be labelled "democratic"? I do not know.
	Compared to Part 3, Part 4 is a far more logical solution, and of much greater benefit to Wales. It is certainly far more democratic. All it needs is a referendum. The noble Lord, Lord Thomas of Gresford, was kind enough to see some merit in my criticisms of Part 3; but what overrode his determination to support me was the fact that he wanted Welsh devolution at all costs. I do not mean that in the literal sense; but rather that the noble Lord was so determined to achieve Welsh devolution that he was not going to drop the opportunity this Bill afforded. Am I right in saying that?

Lord Thomas of Gresford: Why do we not simply accept that the Welsh Government need expanded powers in order to do their job, and that this is just an ingenious and tortuous device to bring in legislation without having a referendum? We can then argue on that basis.

Lord Kingsland: Surely, then, the position of the noble Lord ought to be to vote against the inclusion of Part 3 in the Bill and for the inclusion of Part 4 without a referendum? In terms of democracy, Part 4 is a much better solution for both Westminster and Wales than Part 3. I see the noble Lord, Lord Thomas, nodding.

Lord Thomas of Gresford: We are all agreed. The Conservative Party agrees that we all want to get to Part 4. The question is one of timing. This, although it is a very unsatisfactory mechanism, gives the people of Wales the chance to see the Assembly succeed, without having to go into questions of cost, the nature of the voting system, and other matters which will, in the short term, detract from the ultimate success of the Assembly. That is why I am prepared to go along with this.

Lord Kingsland: In that case, the noble Lord, Lord Thomas, should be voting against Part 3, but supporting Part 4 without a referendum.

Lord Thomas of Gresford: Thank you.

Lord Kingsland: Thank you very much. The noble Lord, Lord Elystan-Morgan, with whom I have served on many occasions on the Wales and Chester circuit, and for whose judicial and political abilities I have the highest regard, challenged me on the point of subordination. Technically, Welsh Assembly measures are subordinate, in the sense that they become binding law only when they are approved by Order in Council. That Order in Council, the stage 2 order, is not brought to this House. The Secretary of State has no discretion in deciding whether or not to table that order. Once the Welsh Assembly has passed a measure, the Secretary of State is obliged to bring that order before the Privy Council. It is exactly the same situation as for the Overseas Territories.

Lord Elystan-Morgan: I said that the ultimate sovereign decision will lie with this House and the other place: of that there can be no doubt.

Lord Kingsland: I may be corrected by the Government subsequently. I understand that there are no circumstances under which, at stage 2, the Secretary of State would resile from tabling an order following a measure in the Welsh Assembly. The substance of what the Assembly is doing is producing primary legislation. I see the noble Lord nodding. However the Government want to camouflage it, those were the words I used at the beginning of my observations. The substance of what the Government seek to do in stage 2 of this Bill is to give primary legislative powers to the Welsh Assembly. I have no objection to that, but I believe that it should be a consequence of a decision by the Welsh people, and not simply of a Bill in this Parliament.

Lord Elystan-Morgan: As I understand it, the Secretary of State will be little more than a legislative errand boy. The decision with regard to that particular message lies here and with the other place.

Lord Kingsland: It does not lie here, because where Assembly measures are concerned in Part 2, the power has already been delegated to the Assembly under stage 1. I see the noble Lord shaking his head; but I believe the position I have taken to be absolutely right.
	If the Committee were to support Part 3, it would endorse a system of executive decision-making between the Government of Wales and its First Minister on the one hand and the Secretary of State for Wales on the other. This Parliament, shamefully, has only a passing interest in what is going on. It has no right to amend to support any view that it expresses; there is absolutely no obligation for either the Welsh Government or the United Kingdom to take any notice. That is not a system the Government ought to be proud of.
	I would have put this matter to the vote if we had finished half an hour earlier. It is plain to me now that the hour is late. Therefore, with reluctance, I am obliged to withdraw the amendment and bring it back at Report stage.

Amendment, by leave, withdrawn.

Lord Evans of Temple Guiting: I beg to move that the House do now resume. In moving this Motion, I suggest that the Committee stage begin again not before nine o'clock.

Moved accordingly, and, on Question, Motion agreed to.
	House resumed.

Transfer of Undertakings (Protection of Employment) Regulations 2006

Lord Hunt of Wirral: rose to move to resolve, That this House calls upon Her Majesty's Government to revoke the regulations laid before the House on 7 February (SI 2006/246) [25th Report from the Merits Committee].

Lord Hunt of Wirral: My Lords, I am very grateful to the Minister for coming to the Chamber today to explain the Government's position on these regulations. I declare my interest as a solicitor and a partner in the firm of Beachcroft LLP. I have been inspired to put down this Motion to revoke by the very serious concerns raised by those who are most directly affected by the regulations; namely, those involved in turning around and, in particular, rescuing failing companies where the transfer of undertakings is all-important. Above all, these highly skilled professionals need as much certainty and as little uncertainty as possible. Our concern is with the insolvency provisions of the regulations, specifically with their drafting and their practical application.
	These regulations were intended to give effect to an EC directive from 2001, fully five years ago. The Government have had plenty of time to get them right, but I believe they have failed abjectly. Over a year ago, the DTI first consulted on the draft regulations and respondents included R3, the representative body for insolvency practitioners in England and Wales, whose expertise in these matters is universally recognised as being second to none. It drew attention to the unsatisfactory nature of the regulations, setting out its detailed concerns and suggesting alternative wording that would have made the regulations workable. Its advice, however, seems to have been completely ignored. Despite many subsequent representations to Ministers and officials, still nothing was done to improve matters.
	In the past, the operation of TUPE has deterred potential purchasers from buying insolvent businesses because of the prospect of inheriting onerous and sometimes uncertain liabilities. One of the stated aims of the regulations is to make it easier for insolvent businesses to be transferred to new employers by reducing some of the burdens that will pass across to a purchaser. We on these Benches fully support this policy objective. Insolvency practitioners, too, are as anxious as anyone else that as many jobs as possible should be saved when an employer becomes insolvent. However, if the regulations are to have the desired effect, they must be drafted in clear, unambiguous language. Only then will those dealing with insolvencies and those acquiring businesses subject to insolvency proceedings know where they stand and precisely how the provisions of the regulations will affect transactions.
	Unfortunately, the regulations, as regards the insolvency provisions, failed to achieve that. That is because they are drafted in language that is so loose and imprecise it is not possible to discern with any clarity how they are supposed to work. Instead of bringing clarity, they bring confusion to new, unprecedented heights.
	My principal concerns are that these regulations, first, fail to specify the types of UK insolvency proceedings to which they are intended to apply; secondly, fail to make clear which liabilities will pass to a purchaser and which will not; and, thirdly, impose unrealistic obligations on insolvency office holders with which it would be impossible for them to comply and with penalties that will ultimately fall on creditors. The regulations transpose the vague generic language of the directive without attempting to specify how it is to apply in the context of specific UK insolvency proceedings. Only expensive and time-consuming judicial interpretation will establish the circumstances in which they are intended to apply.
	The regulations seek to draw a distinction between two types of insolvency proceedings: those opened with a view to the liquidation of the assets of the transferor and those opened not with a view to the liquidation of the assets. However, that distinction makes no sense at all in the context of UK insolvency. It is unclear which of the UK insolvency regimes would fall within which provision. Assets are sold in every type of insolvency process, whether administration, administrative receivership, company voluntary arrangement or liquidation, even where the whole or a part of the business is preserved and sold as a going concern. In some cases, part of a business will be preserved while other remaining assets are disposed of piecemeal.
	In that context, I ask the Minister what the phrase "[not] with a view to the liquidation of the assets of the transferor" is supposed to mean. How is it intended to apply? It is possible for a business to be sold in any of the regimes. Consequently, it is possible for employees of insolvent businesses to be affected by a transfer or proposed transfer of the business, regardless of the type of insolvency regime into which their current employer has entered. Where there is a transfer, the treatment of the employees should be the same, regardless of the insolvency process used. The uncertainty caused by ambiguous drafting will cause delays only in the administration of the insolvency and, most important of all, reduce the chances of successful rescue and preservation of jobs.
	It is unbelievably complacent of the Minister's colleagues, by their own admission, to leave it to the courts to sort this mess out, ultimately at the expense of creditors and to the detriment of employees. Either the regulation should be amended to make it clear explicitly which provisions apply to which types of insolvency process or they should simply apply to all insolvency proceedings equally without distinction.
	Regulation 8 says that where the transferor is subject to insolvency proceedings which have been opened—
	"not with a view to the liquidation of the assets of the transferor"—
	certain accrued liabilities will be paid from the national insurance fund with the balance of any liabilities passing to the transferee. Reference is made to the debts payable by the Secretary of State under the redundancy and insolvency provisions of the Employment Rights Act 1996. However, the interpretation of this provision also is uncertain.
	On a straight reading, the regulation seems to provide for the payment out of the national insurance fund only of the debts payable under the insolvency provisions. This makes it difficult to understand the reference to the redundancy provisions. First, the guidance note issued by the DTI in February indicated that payments would be made out of the national insurance fund in respect of both the redundancy and the insolvency provisions. On 3 April, only three days before these regulations were due to come into force, the Redundancy Payments Office issued a statement of its own. It suggested that where there is a transfer or an unfair dismissal made in connection with a transfer, it will pay only the arrears of pay and accrued holiday pay, which are often minimal or even non-existent. There would be no termination or redundancy payments at all.
	So, again, the Government have added to the confusion. The left-hand appears to contradict the right-hand which, I believe, is unacceptable and must be resolved as a matter of urgency. It is difficult to see how these provisions should or could be amended until Ministers explain exactly what the Government were seeking to achieve by these provisions and which liabilities the Secretary of State is prepared to permit the national insurance fund to meet.
	Before closing, I would like to raise another problem. The regulations include, first, a requirement for the transferor to provide the transferee with information regarding the employees to be affected by the purchaser with a potential liability of at least £500 per employee for a failure to comply and, secondly, joint and several liability between transferor and transferee in the event that employees are not properly consulted prior to the transfer taking effect. These provisions fail to take into account the unique circumstances in which transfers of businesses are affected in the insolvency arena. Within the very tight timeframe of a live insolvency, it will not usually be possible to comply with this requirement and the insolvency practitioner will usually not have enough information to do so in any event. Insolvency practitioners, attempting to act in the best interests of creditors by effecting a swift sale, should not be exposed to the potential costs and delays of defending claims in a tribunal by purchasers on the basis that full information was not given.
	Furthermore, any award made by a tribunal could have a significant impact on the return to unsecured creditors. Should not the regulations have excluded the application of these provisions to insolvency-related transfers? If these regulations stand, it will arguably be impossible for any insolvency practitioner, prospective purchaser of an insolvent business, employee or any of their professional advisers to ascertain with certainty what they mean, what they are intended to achieve and where they should apply.
	The practical effect will be that fewer jobs and businesses will be saved, and that is surely precisely the opposite of everything we are seeking to achieve. The insolvency provisions of the 2006 regulations are uncertain and ambiguous. They even conflict with the Government's own guidance notes. What a mess!
	Many of us have been inundated with representations urging the amendment of these regulations. I have been greatly assisted by my noble friend Lady Miller of Hendon and R3—the Association of Business Recovery Professionals—the Insolvency Lawyers' Association and some of the leading law firms. All of us believe that these regulations are wholly unacceptable, should be withdrawn, reconsidered and redrafted. I beg to move.
	Moved to resolve, That this House calls upon Her Majesty's Government to revoke the regulations laid before the House on 7 February (SI 2006/246) [25th Report from the Merits Committee].—(Lord Hunt of Wirral.)

Baroness Turner of Camden: My Lords, I welcome the opportunity to speak on this Motion. My interest, as I am sure a number of noble Lords will understand, is to ensure that the rights of employees in merger and takeover situations are fully protected. As a former trade union official, it is not surprising that that should be my viewpoint. We already have the TUPE regulations, providing some protection for existing employees when a business is taken over. It is important for industrial relations generally that employees should continue to feel that protection exists. Job insecurity is not helpful in any industrial or commercial environment, particularly in a situation created by globalisation.
	As I understand it, there has been a view that the regulations need some revision, particularly on insolvency, as the noble Lord, Lord Hunt of Wirral, explained. However, there has been a long period of consultation. Since 2001, I believe, the DTI has consulted the CBI, the TUC, the Business Services Association and the Engineering Employers Federation. Of these, only the EEF, as I understand it, has raised strong objections. The CBI has accepted in principle with some reservations. There has also been a report from the Merits Committee. The CBI has apparently objected to the regulations on the grounds of the changes to provisions on service provision, and argues that they would create inflexibility in contract provision, reducing competition and innovation.
	However, the regulations, in changing service provision, are of value and improve protection for employees. In those circumstances, the regulations as a whole should be accepted. I support the Government's position on this, and oppose the Motion of the noble Lord, Lord Hunt, despite the clarity with which he spoke to it. I am not convinced that the employee rights that concern me would be adequately protected if his Motion were carried.
	I note what the noble Lord says about the language, and am sure that the Minister will deal with that when he comes to reply. In the light of my reading of the regulations, and the position I take on the protection of employee interests, however, I do not feel, in the circumstances, that I am able to support the Motion of the noble Lord, Lord Hunt.

Lord Newby: My Lords, I am grateful to the noble Lord, Lord Hunt, for moving this Motion. I will not repeat his clear description of why the practitioners in this area are so unhappy with the regulations, or underestimate the difficulties that the DTI has clearly faced in drafting the regulations in a clear way. It has obviously been difficult to get it right. Although we on these Benches have no problems with the principles that lie behind the regulations, it is clear that, in certain limited respects, the DTI has not got it wholly right.
	The Association of Business Recovery Professionals, as we have heard, has serious concerns that the regulations as drafted will cause confusion and make its job more difficult. This is not a body given either to political posturing or to taking matters into its own hands when it does not feel seriously about them. It is a highly technical trade association. Interestingly, the noble Baroness, Lady Turner of Camden, did not mention it as being one of the groups that has been consulted. However, it has, as we have heard, two complaints.
	The first relates to definitions of the types of proceedings to which the regulations apply and the liabilities which will pass to a purchaser. These are not matters of principle, but technical issues. Secondly, R3 has concerns about the mechanics relating to the provision of information and consultation. As the noble Lord, Lord Hunt, made clear, as currently drafted, they do not seem to be practical to put into operation in the circumstances of some insolvencies. It is strange, given the long period since the directive was passed and the fact that there have been significant consultations, that we still have this difficulty.
	I suspect one reason is that the Government do not always mean what the man or woman on the street means by "consultation": if you ask people their views and they give them to you and are standing on firm ground, you amend your proposal. I deal more with Treasury than DTI matters, but it is now commonplace for the Treasury either not to consult or, where it does, to ignore what is said. As a result of that, we have had a string of tax measures in recent years which have had to be reversed because they have proved to have perverse and unintended consequences. I slightly fear that this is what has happened in this case.
	I therefore ask the Minister—I am sure he is going to enlighten us anyway—whether the Government believe that the concerns expressed by insolvency practitioners are simply unfounded. If so, will he explain to the House why that is? If not, will he explain why a little further time was not taken to resolve these points? Clearly, this directive was passed in 2001. It does not desperately matter whether these regulations are passed tonight or in a month or two's time. There is no overriding time constraint to get it right.
	Noble Lords will have heard me make my final point in debates about secondary legislation in your Lordships' House. Here we are, yet again, having a debate about statutory instruments over which we have no control whatever. Whatever we do tonight—whether we vote or not, whether the Motion is passed or not—will not have the slightest practical effect. Although we feel that we are fulfilling a function in shining a spotlight on to what may be inadequacies of legislation, as a legislature, that seems to be an inadequate function. We ought to be able, where there are problems, to cause regulations to be reconsidered.
	There are two ways in which we could do that. One is to follow more regularly—although I am not suggesting in every case—the precedent which I believe has been set in the Identity Cards Bill, under which regulations can be amended by Parliament. Another suggestion is that in a case such as this, where real problems arise—not imagined problems, put forward by vexatious people—the House ought to be able to refer the statutory instrument in question back to the department for further consultation in specific areas. Just as we return legislation to another place and ask the Government to look at it again, we might be able to do that with statutory instruments, within a set and tight timetable.
	I realise that this is neither the time nor the place for a full-scale debate on these rather more far reaching changes, but this House needs always to look at how it can operate more effectively. In terms of statutory instruments, we do not operate in an effective manner.
	I have great sympathy with the noble Lord, Lord Hunt, and will support his Motion.

Lord Lea of Crondall: My Lords, I shall add two brief points relating to procedure. I listened with some care to the noble Lord, Lord Newby, but would say that we have improved procedures for scrutiny of statutory instruments. It is precisely because of concerns of the type which have been expressed that the Merits Committee was set up only a year ago. We now have its report, which goes into some detail about who was consulted and when. I am sorry that the Insolvency Practitioners Association does not think that it was listened to, but it is surely rather wide of the mark for the noble Lord, Lord Newby, to say that the Government ignored what it said. I do not know whether the Insolvency Practitioners Association was slow off the mark, but all of these matters have surely been considered in great detail. We cannot have it both ways. We cannot say, "This thing has been going on for a long time. Why haven't they got it right?" when some of these considerations are now on the table—at least they are on the table before us today—and the statutory instrument is in front of us. It states:
	"Made 6th February 2006 . . . Laid before Parliament 7th February 2006 . . . Coming into force 6th April 2006".
	A wide range of people has been consulted and not everybody is over the moon about the regulations. However, as I understand it, we cannot just make our own transfer and insolvency arrangements as if there are not 24 other countries in the European Union. Will the Minister comment on that? We do not want to jump from the frying pan into the fire by having some system that looks somehow perfect so far as the traditions of our insolvency practitioners are concerned only to find ourselves trying to find some certainty within a range of different traditions to reflect continental subsidiaries of UK companies and vice versa. This goes back to the argument about why we entered Europe in the first place. We know that it is overwhelmingly to the advantage of industry that regulations of this type have been made in Europe going as far back as 1977. They are among the earliest and most time-honoured of all the social-dimension regulations in the European Union.
	The Insolvency Practitioners Association perhaps needs to gain some further understanding about how it will do its work against the background of the procedure being done and dusted and having been carried out correctly and with great care.

Lord Sainsbury of Turville: My Lords, the Transfer of Undertakings (Protection of Employment) Regulations 2006 are unquestionably important. The Merits Committee has also noted their significance. I am therefore pleased that we have had an opportunity to discuss these new TUPE regulations today. As we know, these regulations implement the Acquired Rights directive in the UK. They are therefore made primarily under Section 2(2) of the European Communities Act 1972 via the negative resolution procedure.
	I say to the noble Lord, Lord Newby, that we have consulted extremely widely, including with the Association of Business Recovery Professionals. We have listened to its views. If we had thought that its views and the proposed course of action would improve the situation, we would have amended the regulations and taken account of that. However, it is our view that they do not and that they merely would have replaced one kind of uncertainty with another, as I shall explain. We therefore felt that we should go forward on this basis.
	I was asked why we did not take more time to get these regulations right. It has taken a very long time to bring these regulations forward. Work started in 1997, and we have been pressed to finalise the regulations and improve the protections provided by them. Against that background, it would have been a grave mistake to delay them further.
	The original TUPE regulations were introduced in 1981. They have given rise to large amount of litigation and have been repeatedly tested in the tribunals and courts. This new set of regulations represents a major revision of those 1981 regulations. They have been in preparation for many years and have been the subject of three rounds of public consultation.
	Our aims in revising the 1981 regulations were several. We needed to update them to reflect the changing face of our labour market, in particular the greater use of outsourcing and similar practices. We also needed to clarify the law, both to reflect important developments in case law across the 25 years or so during which the 1981 regulations were in force and to address some of the inconsistencies that had arisen between domestic and European interpretation of the directive and the regulations. We wanted to revise them also to take account of changes to the Acquired Rights directive.
	The revised Acquired Rights directive provided new possibilities for member states to develop their law on transfers. We have taken advantage of those possibilities. For example, the 2006 regulations place a new obligation on the transferor employer to provide information to the transferee employer about the employees who are transferring. That information, which should normally be provided in advance of the transfer occurring, should help the new transferee employer to prepare for the responsibilities and obligations that he will inherit. It should therefore help ensure a smoother transition, benefiting both the new employer and the transferred employees.
	Another major set of changes flowing from the new directive concerns the treatment of transferors subject to insolvency proceedings at the time of transfer. It is this element of the new regulations, which is in Regulations 8 and 9, that has attracted speakers in this debate. In explaining our position on these two regulations, it is fair to say that our objective in making these changes is shared by most, if not all, of us. Regulations 8 and 9 aim to make it easier for a new transferee employer to take on all or some of the business from a transferor employer who is insolvent or, more precisely, is the subject of insolvency proceedings. In other words, it aims to support the "rescue culture", preserving as many jobs as possible in the difficult situations which can arise when businesses face extreme financial difficulty.
	Regulation 8 assists by relieving the transferee employer of some of the debts owed by the transferor to the transferring workers. Under the 1981 regulations, most of those debts would have been transferred to the transferee, creating a disincentive for a new employer to step in. Under the 2006 regulations, we have relieved the new employer of some debts that will now be met through the National Insurance Fund. For example, the fund will meet arrears in pay owed to the transferring employees up to the statutory maximum that can be paid under the Employment Rights Act 1996. This provision applies where the transferor is the subject of insolvency proceedings which have been opened not with a view to the liquidation of the assets of the transferor.
	In addition, Regulation 8(7) disapplies Regulations 4 and 7 in those extreme cases where the transferor is subject to "bankruptcy or analogous" insolvency proceedings which have been opened with a view to the liquidation of the assets. This means that if a transfer occurs in those circumstances, the TUPE provisions concerning continuity of employment and the maintenance of contractual terms and conditions do not come into play.
	Regulation 9 assists the rescue culture by creating room for the transferred employees to agree new terms and conditions with the transferee or the insolvency practitioner. Under the 1981 regulations, the transferee employer would have to have taken on the employees under their old terms and conditions. Regulation 9 loosens that arrangement and, in effect, permits the parties, subject to particular safeguards, to agree to transfer on different, perhaps inferior, terms and conditions. The safeguards limit contractual changes to permitted variations of contracts that are designed to safeguard employment opportunities by ensuring the survival of the undertaking. They also involve the participation of union or other representatives in the process and the provision of information on proposed contractual changes to the affected employees. In cases where bankruptcy or analogous proceedings are taking place, there is even wider scope to apply new conditions because Regulation 4 does not apply.
	There have been two broad criticisms of these insolvency provisions and they were made by the noble Lord, Lord Hunt, this evening. First, it has been suggested that Regulation 8 and our guidance are insufficiently clear in identifying which debts are met from the National Insurance Fund. Secondly, doubts have been expressed about our approach to copying out the directive when defining how the various categories of insolvency proceeding are covered.
	Let me start with the debts issue. The National Insurance Fund will be able to play a role where employees transfer within the scope of the regulations and they are owed certain contractual debts by the transferor. The fund will cover any arrears in pay and holiday pay owed by transferor, subject to the statutory limits. Statutory redundancy pay does not come into play for those employees because they have not been made redundant during the transfer process and TUPE regulations have the effect of deeming such employees not to have been made redundant on the date of the transfer.
	The situation is different for employees who would have physically transferred had they not been dismissed in advance of the transfer. Such dismissals may be lawful under TUPE where the dismissals were connected with the transfer and were made for an,
	"economic technical or organisational reason entailing changes in the workforce".
	Those employees are entitled to statutory redundancy pay, and the National Insurance Fund will meet those debts.
	Where employees have been dismissed because of the transfer itself or for a reason connected with the transfer that is not an economic, technical or organisational reason, that dismissal is unfair under the TUPE regulations. Employees in that position must complain to an employment tribunal of unfair dismissal, seeking the standard compensation for their loss. The liability in that situation could pass to the transferee, but it will be for the tribunal to decide where liability falls. The fund is not responsible for the debts arising from tribunal awards against the transferee.
	The Insolvency Service has provided a detailed note to insolvency practitioners that sets out the various ways in which the fund can assist. That detailed note clarifies the position adequately and it is clear what the situation is. It is complicated, but we are dealing with a complicated situation involving TUPE regulations in an insolvency. There is no getting away from that complicated situation, but it is clear what the National Insurance Fund can do.
	Let me now turn to the set of questions concerning our decision to copy out the relevant parts of the directive. As a result, we have not specified how each of the many types of insolvency proceeding would be treated. The main reason for adopting our preferred approach was to be sure that we implemented the directive correctly. Had we adopted a different approach, errors might have been made. We are often criticised in this or other places for failing to implement our EU obligations correctly. On this occasion, we have sought to avoid that potential error.
	It has been said that our approach creates uncertainty because it fails to specify how each type of insolvency proceeding is to be treated. Some argue that it is unreasonable to leave such matters to the courts. However, it is impossible to give absolute legal certainty when applying European directives of this kind. If we had chosen other wording for our regulations—for example, if we had listed each type of insolvency proceeding covered by Regulation 8(6) and 8(7)—we would potentially have created scope for legal challenges about our implementation of the directive. It is not possible to get rid of all uncertainty. Either there is uncertainty about how the general point in the directive applies to particularly circumstances in this country or, if that is specified, there is the uncertainty of that method being challenged because it does not properly implement the European directive.
	Furthermore, the listing of insolvency proceedings would have made the regulations much more complicated. This point was raised by my noble friend Lord Lea this evening. How would they deal with the transfer of an undertaking located in the UK that was part of a French or Italian business entity that was the subject of insolvency proceedings in its home country? To cater for those circumstances, it might be necessary for Regulations 8(6) and 8(7) to specify how each of those foreign insolvency proceedings were to be treated. That would clearly be ludicrous, but it is a problem that can arise when regulations are drafted in fine detail.
	I recognise that some insolvency practitioners are concerned about the regulation. In our judgment, the generic descriptions of relevant insolvency proceedings in Regulations 8(6) and 8(7) are reasonably clear. In our view, there are unlikely to be significant problems.
	Let us look at the position of administrations, the main category of insolvency proceeding. Regulations 8 and 9 were drafted with the intention that where there was a transfer in a business or undertaking, and the transferor was in administration under the Insolvency Act 1986, employees engaged in that business should be transferred to the acquirer of the business or undertaking. In other words, we intend that Regulation 8(7) should not apply in that situation, but the other provisions in Regulations 8 and 9 would apply. It is our view that the regulations have the intended effect. The key words in Regulation 8(7) are "bankruptcy proceedings" and "analogous". The expression "bankruptcy proceedings" is to be interpreted as meaning proceedings that have as their main or only purpose the realisation of a debtor's assets with a view, after payment of the associated costs and expenses, to the distribution of the proceeds to the debtor's creditors. A key feature of bankruptcy proceedings is that they are collective proceedings; in other words, they are for the benefit of all creditors. Administration does not fall within the expression "bankruptcy proceedings". The key question is whether administration is analogous to bankruptcy proceedings and it would appear that it is not. The principle or main purpose of administration is not the realisation of the debtor's assets with a view to distribution among creditors. The statutory purpose to which administrators are obliged to have regard first is the rescue of the company. However, the interpretation of the regulations is ultimately a matter for the tribunal and the court.
	The noble Lord, Lord Hunt, made the point that few transfers of insolvent businesses involve the sale of all assets to the transferee. This is another area where there has been concern. Some assets are simply sold off to the highest bidder as in a liquidation. Just because some assets are liquidated, it does not follow that Regulations 8(6) and 9 do not apply. The regulations refer to the "liquidation of the assets". They do not refer to "the liquidation of some assets" or to "the liquidation of any assets". It is therefore very difficult in our judgment for the tribunal and courts to conclude that the wording of the regulations and the directive means that where some assets are liquidated, Regulations 8(6) and 9 do not apply.
	I do not pretend that the regulations are completely certain in their effect and in their capture. That is inherent within much new legislation. Complete or near-complete certainty cannot be found in these situations.
	I turn to one or two specific points that were raised. The noble Lord, Lord Hunt, said that it is impractical for insolvency practitioners to supply the level of detailed information required in the short time periods within which they typically operate. Regulations 11 and 12 have flexibilities within them. In general, the information must be supplied at least 14 days before the transfer, but this can be relaxed when it is impractical for the transferor to do so. It is perfectly possible for an insolvency practitioner to argue that he should supply the information later because he is new to the business. The tribunal can also waive the minimum compensation for a failure to supply the information where it considers it just and equitable in all the circumstances to do so. Again, the insolvency practitioner could argue for this discretion to be used where it was impossible for him to assemble the necessary information. That said, we believe that in most cases the information can easily be assembled by the insolvency practitioner and most information will be located on payroll and in other personnel information, which should be readily accessible.
	The noble Lord, Lord Hunt, said that the DTI guidance on the provisions is unclear. The statement in the response document is factually correct, although I concede that it might potentially confuse the reader. Where a statutory redundancy payment is made, the individual who receives that payment would need to build up his entitlement from zero. The phrase was not meant to imply that all transferring employees should receive such a payment on a transfer, whether or not they lost their job. Indeed, the opposite is the case where employees take out employment with the transferee because, in general, they will not be made redundant by the transferor in the lead up to the transfer. However, there will be some cases where affected employees are made redundant for an economic, technical or organisational reason connected with the transfer in anticipation of the transfer or afterwards. Those employees are entitled to statutory redundancy payments so long as they meet the standard and other criteria. The position on that is set out very much more fully in the guidance issued by the Insolvency Service.
	The noble Lord, Lord Hunt, spoke about the justification for making the transferor and the transferee jointly and severally liable for a failure to consult. He asked whether that would inhibit the rescue culture and deter potential employees from taking on an insolvent business. There is no reason why consultation cannot be carried out properly in extreme situations of insolvency. We would want parties to ensure that they occur in practice. Joint and several liability provides an incentive to both employers to ensure consultation occurs. Good prior consultation usually smooths the way for transfers by reducing employee resistance. So our proposals would in fact provide a stimulus to business rescue.
	The 2006 TUPE regulations have taken many years to produce. They have been the subject of an enormous amount of prior consultation. We believe that we have implemented the directive correctly and have updated the regulations to reflect the way our modern labour market works. We had to make a decision about whether to copy out how the directive was produced, or, alternatively, try to specify the provision in greater detail in terms of the UK and then face the situation of uncertainty because of challenge that it did not properly implement the directive. We have taken the first course because we think that will lead to greater certainty. I think that is the right course to take.
	However, we will monitor closely how the new regulations operate in practice. If problems emerge we will consider the case for amending the regulations. With those assurances and explanations, I hope that the noble Lord will feel able to withdraw his Motion.

Lord Hunt of Wirral: My Lords, I thank the noble Lord, Lord Newby, for his support. I agree that the Government have not got this right—it is certainly not wholly right. I very much agree with the noble Baroness, Lady Turner of Camden, and the noble Lord, Lord Lea, in wanting to make sure that as many jobs as possible can be saved in a simple and effective way. I am rather disappointed with the Minister, as he would probably anticipate I would be disappointed. He said, "Well, it is going to be uncertain. It is a matter for the courts and tribunals". I do not know whether the Minister has read the advice of the Insolvency Service. It says that it is uncertain. I am sorry, but it is. The Insolvency Service says in its letter:
	"It is inevitable that an employment tribunal will eventually determine this point".
	I do not think that it is good to pass legislation which requires courts and tribunals to interpret it so that it can be put into effect.
	I must say to the noble Lord, Lord Lea, that our three correspondents were not slow off the mark. On 7 June 2005, they submitted a greatly detailed response that stressed that the drafting was unsatisfactory. On 23 November, when they had heard very little from the department, they telephoned the department, spoke to the lead official and asked whether they could come in to explain why they were so concerned. The official said no; the department did not want a meeting. Declining that offer of a meeting probably lies at the heart of all this; we would get this right if only the Government listened a little more. I really think I should test the opinion of the House.

On Question, Whether the said Motion shall be agreed to?
	Their Lordships divided: Contents, 77; Not-Contents, 79.

Resolved in the negative, and Motion disagreed to accordingly.

Lord McKenzie of Luton: My Lords, I beg to move that the House do now adjourn during pleasure until nine o'clock.

Moved accordingly, and, on Question, Motion agreed to.
	[The Sitting was suspended from 8.55 to 9 pm.]

Government of Wales Bill

House again in Committee on Clause 92.

Lord Kingsland: moved Amendment No. 54A:
	Page 50, line 26, at end insert ", adopted by resolution of each House of Parliament"

Lord Kingsland: Now that we have covered most of the issues in a general way during the debate on the previous amendment, my submissions on the detailed points can be relatively succinct. First, we come to Amendment No. 54A to Clause 92(2), which is a good illustration of the point that I was trying to make about the way that the Bill is drafted when speaking to the previous amendment.
	We are having to deal with stage two before we go on to stage one. My point is simple. Clause 92(2) states:
	"A proposed Assembly measure is enacted by being passed by the Assembly and approved by Her Majesty in Council".
	There is no mention of the order being tabled in your Lordships' House and in another place before being taken to the council for approval. Why? I cannot think of any precedent of that being so in this country. There are precedents for the overseas territories, but, as far as I am aware, there is no precedent for an Order in Council going in front of Her Majesty before it has been treated by either the negative resolution procedure or the affirmative procedure.
	One can only speculate on why that is so. There are two answers. One is that the Secretary of State has no discretion whatever. Once he or she receives evidence that an Assembly measure has gone through all its stages, the Secretary of State has no alternative but to table it. The other is that the Secretary of State does have discretion whether to say yes or no. If that is so, surely the case for the order being tabled before both Houses of Parliament is overwhelmingly strong. I beg to move.

Lord Rowlands: I am puzzled by this amendment because, by this time, the measure would have gone through the Assembly. It would have evolved. It would have been debated at great length and scrutinised following an Order in Council approving that competence. Therefore, what would this House be expected to do when that measure is complete? The House would not have been party to any stage of the Assembly measure's preparation and development because, quite rightly, that has been devolved to the Assembly itself. It would be a completed Assembly measure. Therefore, there would eventually have to be an Order in Council to finalise it. What in the name of heaven would we be voting on? Would we say that we did not believe the measure to be a good one, when this House had not been party to its development other than the original Order in Council? Surely we would not say that it was outside the devolution competence, because all sorts of provisions prevent that happening in other clauses. When the noble Lord develops this case, I would like to know what we would be expected to vote on.

Lord Kingsland: I will attempt to answer the noble Lord's question. I suggest there are two possibilities. One is that, at the end of the day, the Secretary of State can refuse to table the order, even though it has been passed by the Welsh Assembly. If the noble Lord reads Clause 92 he will see that it states:
	"A proposed Assembly Measure is enacted by being passed by the Assembly and approved by Her Majesty in Council".
	So the legislative process has two stages. First, it has to be passed by the Assembly as an Assembly measure and, secondly, it has to be tabled in the Privy Council. The question I am probing is whether or not the Secretary of State for Wales has the discretion to say no to the Welsh Assembly, for one reason or another. The noble Lord is shaking his head but that is not clear. If the Secretary of State does not have any discretion, this is plainly primary legislation. If he does have discretion, and if it really is subordinate legislation, why is Parliament not engaged, as it always is when a Secretary of State has the discretion following the tabling of an Order in Council?

Lord Thomas of Gresford: We oppose this amendment on the basis that it is bringing Parliament in as a check upon the Welsh Assembly. That is quite undesirable. It does not happen in Scotland. There is no reason to think that the body of Members of the Scottish Parliament are more competent or have greater wisdom than the Members of the Welsh Assembly. It is essential that our Conservative friends let go on devolution and let the people decide.
	I was delighted to hear I was wrong in suggesting to the noble Lord, Lord Crickhowell, and others that they were against devolution fundamentally. If one goes back far enough, the Conservative position was certainly always against devolution. Your Lordships will know that, as they stagger out of the Bishops' Bar, they will see opposite a large painting of the Marquess of Salisbury addressing the House on the Government of Ireland Bill on 8 September 1893. I have often wondered what he was saying. He said that this is,
	"the motto which I hope the Unionist Party will adopt . . . if you allow this atrocious, this mean, this treacherous revolution to pass, you will be untrue to the duty which has descended to you from your splendid ancestry"—
	of course, he was talking to hereditary Peers—
	"you will be untrue to your highest traditions, you will be untrue to the trust that has been bequeathed to you from the past, you will be untrue to the Empire of England".
	That is an interesting thing. Addressing the national union of the Conservative Party in 1886, he said that the Hottentots, Indians, Greeks, Russians and Celts were unfitted for self-government. So it is a pretty deep tradition to oppose devolution.

Lord Kingsland: The noble Lord, Lord Thomas, introduced that quotation in the context of an earlier remark he made about the Conservatives. I do hope he is not suggesting that the philosophy which was expatiated upon by the Marquess of Salisbury in the late 19th century is one that we share today.

Lord Thomas of Gresford: I hope not, because his view was that only the Teutonic races were fitted for self-government. That was something that carried an echo into the 20th century. It is great that the Conservatives have come forward as far as they have to support the whole concept of devolution. But one cannot help feeling that there is some reluctance. It is rather like breaking open a piece of toffee and, as one pulls it apart, seeing the strands cling to each other. One feels that the Conservative Party is reluctant to allow the Welsh Assembly to sail off into Cardiff Bay.

Lord Crickhowell: I merely observe that the noble Lord speaks with all the authority of a man who tried on a number of occasions to be elected by the people of Wales and always failed. I am not sure that he is in a position to lecture those of us who stood consistently in Wales and were always elected.

Lord Thomas of Gresford: Yes, eight times, to be precise. I regard it as a proud tradition of Liberal Members of this House.
	Turning to the amendment, we believe that to interpose both Houses of Parliament every time there is some suggestion of devolution is quite wrong. Consequently, we cannot support the noble Lord, Lord Kingsland.

Lord Kingsland: In that case, the noble Lord agrees with me that, in effect, the Assembly is making primary legislation. If the Secretary of State has absolutely no discretion to do anything other than to table the order at Buckingham Palace, without reference to the Westminster Parliament, the Welsh Assembly measure is effectively primary legislation. Would the noble Lord agree?

Lord Thomas of Gresford: Shock, horror, I would.

Lord Rowlands: But there will have been a previous reference to this place. That is what the Orders in Council process does. The original draft Order in Council bestows on the Assembly the power to go ahead and make the measure. That is the difference between full transfer of primary powers and what this part of the Bill does.

Lord Kingsland: There is a big difference between bestowing power on the Welsh Assembly to legislate on a certain matter and the measure that is made under that authority. For example, the measure may exceed the delegated power. Suppose that the Secretary of State for Wales takes the view that the Assembly measure goes way beyond the scope of the Welsh Assembly's authority. Does he have the power at that stage to turn to the Welsh Assembly and say no or doesn't he? Suppose that he takes the view that the Welsh Assembly measure exceeds the delegated power and Westminster takes a different view. Surely there would be a benefit in those circumstances in having Westminster vote on what the Welsh Assembly had done before the matter was taken by the Secretary of State to Buckingham Palace.

Lord Davies of Oldham: I think that all that needs to be said in response to the amendments has already been said by my noble friend Lord Rowlands and the noble Lord, Lord Thomas. It is a strange form of devolution that says that, after due process has been followed through the Orders in Council to devolve power to the Assembly and the Assembly then takes measures within that power, Parliament should have some capacity to approve those measures. That reduces the National Assembly for Wales to a committee of the House. It basically says: "You can recommend or pass what you like, but final authority will remain at Westminster". Well, that is not devolution, which is what we are debating in the framework of the Bill.
	I can understand the Conservatives' reservations about this. They do not like devolution. Perhaps we should say that part of the Conservative Party does not like devolution; other parts of the Conservative Party seem very keen on it. Indeed, some parts of the Conservative Party want devolution for England; they say, "England for the English", in very strong terms.
	But we are discussing the Bill and the Government's view of devolution. I am saying to the noble Lord that it is a complete denial of devolution to suggest that, after the Assembly—a democratically elected body with its own direct mandate—has had the approval, won through Orders in Council, to use its discretion in a particular area and then takes measures, Parliament should intervene again.

Lord Kingsland: The Minister has again totally failed to address any of the points that I made about my amendment. The issue is simple. I am perfectly happy for the Minister's answer to be that the Secretary of State has no discretion. That is fine. In those circumstances there would be no point in coming to Parliament. However, if the Secretary of State has no discretion, we are not talking about the subordinate process that the Government claim this is, both in the Bill and in the notes. We are talking about primary legislation, which is precisely what the Government say it is not. That is the point. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendment No. 55 had been withdrawn from the Marshalled List.]

Lord Kingsland: moved Amendment No. 56:
	Page 50, line 28, leave out subsection (3).

Lord Kingsland: This amendment refers to subsection (3) in Clause 92. A similar provision to this appears in Section 28(5) of the Scotland Act 1998 and in Section 5(5) of the Northern Ireland Act 1998. Indeed, it is, in effect, contained in the Bill of Rights.
	The nature of devolution in Scotland and Northern Ireland, as well as the nature of legislation in the Westminster Parliament, is that we make primary law. It is true that the Northern Ireland and Scottish legislatures make primary law within circumscribed circumstances. Nevertheless, within those circumstances they make primary law. Even under Part 3 the Welsh Assembly will not, in law, be making primary law. Therefore, in my submission, this subsection does not belong in the Bill at all. There was no attempt to insert such a provision in 1998, at the time of the first devolution to Wales. The Welsh Assembly remains under this Bill a subordinate body. Therefore, there is no room for Clause 98(3). I beg to move.

Lord Davies of Oldham: Amendment No. 56 would certainly remove the protection afforded to Assembly measures against legal challenge on grounds of procedure invalidity in the proceedings of the Assembly leading to enactment. The Government do not think that the Assembly should be impeded by legal challenges, some of which might be wholly spurious.
	Article 9 of the Bill of Rights of 1688 provides that there can be no legal challenge to things done in Parliament. That is an absolutely fundamental part of parliamentary privileges and rights. Similar provisions to that in the Bill before us today are included in the Scotland Act and the Northern Ireland Act. The principle is already clearly established in relation to legislation passed by other devolved bodies. The concept of devolution, if it means anything at all, must mean that these bodies have the capacity to pass legislation. They must have legislation passed with the same protections as Parliament has enjoyed over the centuries, because without that they have an inferior form of legal capacity. As we all know, they would be potentially subject to all sorts of challenges on process. It is a cardinal point of parliamentary responsibility. This Parliament has enjoyed it for several hundred years. The Scottish Parliament has enjoyed it since the Scotland Act 1998, and parts of the Northern Ireland Act provide it as far as the Province of Northern Ireland is concerned. We are seeking to extend that to the National Assembly for Wales only within those areas of competence duly and specifically granted by this Parliament. The National Assembly should have the same entitlement to privilege that all other parliamentary assemblies enjoy.

Lord Brooke of Sutton Mandeville: I wonder whether the Minister could resolve one particular Delphic matter which is contained in the Explanatory Notes. I refer to the heading on page 65:
	"DETAILED COMMENTARY ON CLAUSES IN PART 3".
	Having explained that procedural irregularities or invalidity will,
	"not render the Measure invalid and it will still be law",
	the final sentence on page 65 reads:
	"However, it is thought—
	I emphasise the words "it is thought"—
	"that this subsection will not save a purported Assembly Measure which has not been passed at all by the Assembly because, in those circumstances, clause 92(2) would not have been complied with".
	Could the Minister be slightly less Delphic and say whether, rather than being thought, it is actually definitive?

Lord Davies of Oldham: The noble Lord asks me a specific point that I shall have trouble answering directly. He will recognise that here we are seeking to protect against the accordance of normal privileges when an Assembly measure has been duly passed but where there may have been administrative irregularities. I refer to the small details which no one would suggest would have affected anyone's perspective on the Bill but which might render it invalid because of such irregularities. We seek that protection. That is the purpose of this part of the clause.
	I hear what the noble Lord says. I understand that the relevant paragraph in the Explanatory Notes contains the word "thought". The noble Lord wants to know why that is not expressed in definitive terms. I believe that in that paragraph we are being extremely careful and guarded about the position. However, the way in which the legislation deals with those points is clear. I shall write to the noble Lord because this answer is probably not entirely to his satisfaction and I do not have the resources to deal with the point at the moment.

Lord Kingsland: I do not want to add anything to what I said earlier. My question remains valid and, with great respect to the noble Lord, I do not think that he has grappled with it. However, there is one question of fact about which I want to ask him. I will fully understand if he is not in a position to answer it at the moment. No such clause as Clause 92(3) appeared in the 1998 Act. This clause is now to appear—assuming that it survives the parliamentary process—in this Bill, which will ultimately become an Act. Does Clause 92(3) apply only to the legislation under the new powers—in other words, to Assembly measures—or does it also apply to the measures made under the 1998 Act?

Lord Davies of Oldham: The answer to the first question is yes and the answer to the second question is no. I think that the noble Lord will recognise why I am able to answer categorically. At this stage we are dealing with empowerments for the National Assembly that have been through the process—of which I know the noble Lord is not a great admirer—through Orders in Council, and the measures that the Assembly can take under those specific authorisations. That is why this provision relates to those measures within that framework.

Lord Kingsland: As the noble Lord knows, I would be quite relaxed about that answer were it not for the fact that the Government continue to claim that the new Assembly-making measure is still subordinate legislation. However, I think that we have covered that ground already. I shall certainly reflect on it between now and Report and I am sure that the Minister will too. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendments Nos. 57and 58 not moved.]
	Clause 92 agreed to.

Lord Roberts of Conwy: moved Amendment No. 59:
	After Clause 92, insert the following new clause—
	"REFERENDUM ABOUT COMMENCEMENT OF ASSEMBLY MEASURES PROVISIONS
	(1) Her Majesty may by Order in Council cause a referendum to be held throughout Wales about whether the Assembly Measure provisions should come into force.
	(2) If the majority of voters in a referendum held by virtue of subsection (1) vote in favour of the Assembly Measure provisions coming into force, the Assembly Measure provisions are to come into force in accordance with section 92.
	(3) But if they do not, that does not prevent the making of a subsequent Order in Council under subsection (1).
	(4) No recommendation is to be made to Her Majesty in Council to make an Order in Council under subsection (1) unless a draft of the statutory instrument containing the Order in Council has been laid before, and approved by a resolution of, each House of Parliament and the Assembly.
	(5) But subsection (4) is not satisfied unless the resolution of the Assembly is passed on a vote in which the number of Assembly members voting in favour of it is not less than two-thirds of the total number of Assembly seats.
	(6) A draft of a statutory instrument containing an order in Council under subsection (1) may not be laid before either House of Parliament, or the Assembly, until the Secretary of State has undertaken such consultation as the Secretary of State considers appropriate.
	(7) For further provision about referendums held by virtue of subsection (1) see Schedule 6.
	(8) In this Act, "The Assembly Measure provisions" means sections 92 to 101."

Lord Roberts of Conwy: The argument for a referendum before the Assembly measure provisions in Part 3 come into force is similar to the Government's argument for a referendum on the commencement of Assembly Act provisions in Part 4. The argument is similar because the effect of implementation of Parts 3 and 4 could be similar over time. This was elicited in Committee and on Report in the other place and has subsequently been clarified in the 17th Report by the Delegated Powers and Regulatory Reform Committee. My noble friend Lord Crickhowell was quite right in saying that that report has not been referred to sufficiently, but I shall do so now. I shall quote the statement in paragraph 27, page 5, of that report, to which my noble friend referred earlier. The report says:
	"We draw to the attention of the House the width of the power in Part 3 and that it could, subject to the necessary parliamentary approval, be used to achieve a situation (by filling up the "fields") which is not really distinguishable from that under Part 4 (for which a referendum is required)".
	We recognise that the committee's judgment is independent of party interest and noble Lords will respect it as totally non-partisan. It highlights the close interrelationship between these two parts of the Bill and the situations that may result from their implementation. I remind your Lordships that they are described by the committee as "not really distinguishable". Why then should a referendum be required to introduce Part 4 but not Part 3? The short answer is that the Government do not see eye to eye with the committee, or the Opposition, on this issue. They believe that the outcomes of the implementation of the two parts are very distinguishable.
	The Government's commitment to a referendum goes back to the White Paper Better Governance for Wales, in particular to paragraphs 3.22 and 3.23, on page 25, where it is stated that the enhanced powers described in the preceding paragraphs,
	"would be adaptations of the current settlement and the Government believes that they do not require a referendum".
	The enhanced powers include those available under Part 3. The White Paper goes on to say that if further transfers of primary legislative powers over all devolved fields are required:
	"The Government is clear that this would represent a fundamental change to the Welsh settlement and would have to be endorsed in a referendum".
	I do not query that referendum conclusion. I believe the Liberal Democrats do. They are not in favour of referendums.
	Let us be clear that what we are talking about here is the quantitative rather than the qualitative difference between the outcomes of Part 3 and Part 4. It is not a fundamental change at all, but an incremental one. That is a description that the Government use from time to time. The noble Lord, Lord Davies, used the word "incremental" earlier in our proceedings today. The very meaning of "incremental" is quantitative, not qualitative. If a referendum under Part 4 produced an affirmative result and the provisions came into force, one of the immediate consequences would be that Part 3 would cease to have effect, as the Explanatory Notes and Clause 105 make absolutely clear.
	In short, Part 3 would be submersed—not subsumed but submersed—by Part 4. The line between Part 3 and Part 4—where a referendum is not required and where a referendum is necessary—is a very fine one, and it is not easy to detect on the slippery slope from a little primary legislative power in a corner of a devolved field to full primary legislative power all over the devolved fields in their entirety.
	The implementation of Part 4 is by far the more satisfactory from a democratic point of view, as my noble friend Lord Kingsland emphasised earlier, because it would represent the will of the Welsh electorate as expressed in a much-needed referendum. The interim Part 3 position is totally unsatisfactory, because it leaves the legislative competence of the Assembly to be defined by Orders in Council, which are ultimately controlled by the Secretary of State. That is an autocratic, not a democratic, solution. The incremental process of increasing the Assembly's competence requires the endorsement of the electorate in a referendum just as much as, if not more than, the ultimate goal of full primary legislative power in the devolved fields. That is why we are calling for a referendum before the process begins and before Part 3 is implemented, rather than Part 4. A referendum at the Part 4 stage would be rather late in the day; possibly it would take place more than a decade hence. It would be long after the horse had bolted from the grip of the Welsh electorate.
	Our new clause is a replica of the Government's Clause 102 and must therefore be beyond ministerial criticism. If carried, of course, there would need to be some consequential changes to Schedule 6, which could be introduced at a later stage. I hope that the Minister will not press me on what the question for a referendum should be, because the Government have already thought about that, and they have got their question ready for the implementation of a referendum under Part 4. The same mechanism would apply to a referendum under Part 3. I beg to move.

Lord Rowlands: The noble Lord, Lord Roberts, fails to understand the fundamental distinction between Part 3 and Part 4. Part 4 would give primary powers to the Welsh Assembly, and neither this House nor the other place would thereafter have any responsibility or control over legislation—except the one catch-all provision that Parliament always remains sovereign. That is as true of the Scotland Act as it would be of a new Wales Act. Part 3 does not do that. It still leaves the fundamental power to decide whether the Assembly can further enhance its legislative competence with Orders in Council. Those Orders in Council must be approved or otherwise by both Houses. That is a fundamental distinction between those two positions, and therefore between Part 3 and Part 4.
	This also, in my view, distinguishes the question of whether there should be a referendum. The noble Lord, Lord Roberts, then ducks the basic question. It is very easy to devise the question under Part 4 because it would be a simple proposition: do the Welsh public wish the Assembly to have primary legislative powers? It would be very clearly understood. The question that would have to be put in a Part 3 referendum would be: do the Welsh public support the Assembly measure provisions in Clauses 92 to 101 of the Bill? Presumably, in order for there to be a referendum, these nine clauses would have to be printed and circulated to every member of the Welsh public in order for them to decide if they wanted Orders in Council; if they wanted the proceeding then to go to Assembly measures; and if they wanted the reserve powers of the Secretary of State contained between Clauses 92 and 101. I have a profound belief in the maturity and intelligence of the Welsh electorate; after all, it elected me for many years. However, I have grappled with Clauses 92 to 101. Can you imagine the discussion around the breakfast table about whether to vote, and whether to support Clauses 92 to 101? It makes a nonsense of the idea of a referendum on Part 3. It is unnecessary because there is a clear distinction between Part 3 and Part 4. It is also not the kind of material that makes for a sensible referendum.

Lord Roberts of Conwy: The noble Lord is saying that the question for a referendum under Part 4 is as simple as he put it: do people want the Welsh Assembly to have primary legislative powers? That precise question is equally applicable to Part 3, which grants primary legislative powers. It is only a question of quantity, as opposed to quality.

Lord Rowlands: The noble Lord cannot get away with that because his own amendment defines what the question will be. It will be whether the Welsh electorate supports the Assembly measure provisions. His own amendment defines what the Assembly measure provisions are: Clauses 92 to 101 of this Bill. The noble Lord cannot get away from how one would handle a referendum dealing with nine complicated clauses, which even some of us are grappling with, and then ask the poor Welsh electorate to try to determine it. There is a clear distinction between Part 3 and Part 4. I believe it is for us to grapple with Clauses 92 to 101 and, ultimately, for the electorate to decide, at some point in the future, whether they wish to proceed to Part 4.

Lord Crickhowell: I have listened to the noble Lord, Lord Rowlands, making very persuasive speeches for more than 30 years. I do not think I have ever heard him make a less persuasive one than that. The noble Lord gave the whole game away in his opening remarks. The real reason the Government do not want to move on to Part 4 and prefer this more obscure way of proceeding is that the noble Lord, Lord Rowlands, and many of his friends in the other place are all too aware of the consequences of that move as regards the role of Welsh Members of Parliament. The likelihood is that there would be a reduction not only in the role of Welsh Members of Parliament, but in their number. We all know that there are Members in the other place who are very concerned about that. It was because there was no unity on this issue that the Government have suddenly devised this complex and obscure route forward. That is the whole reason why we are going down this rather absurd route.
	The noble Lord put forward an Aunt Sally and then tried to destroy it. He put up a wholly fallacious argument about setting out in great detail the clauses of the Bill in a referendum and the inability to explain it to the electorate of Wales. One only has to turn to two remarks made about the matter by very distinguished Members of both Houses to see how easy it would be to get a perfectly simple question that one could put to the electorate of Wales. The first remark was made by the right honourable Alan Williams, the Father of the House of Commons, when he pointed out that,
	"the Bill as drafted . . . provides for a succession of orders, [and] the full legislative objective could be achieved without a referendum".
	He went on to say,
	"It is a form of creeping devolution".—[Official Report, Commons, 9/1/06; col. 53.]
	Then, in the Welsh Affairs Committee, the noble Lord, Lord Richard—unusually for him he is not in his place, but that is not perhaps surprising at this late hour—pointed out very clearly that we are dealing with,
	"a device to avoid having to come to Westminster to ask for primary powers to be formally devolved. It is quite an interesting device . . . Westminster can say they have not devolved primary legislative powers, but depending on the way in which the Order in Council procedure is used, it could in effect be a concealed grant of almost a direct legislative competence down to Cardiff".
	Once one brings those two things together, all one really has to do is to say, "Look, we propose to extend primary legislative powers"—that is what they are, as my noble friend Lord Kingsland has established very clearly—"to the Welsh Assembly, step by step and bit by bit. We are reluctant to do it all in one great step, but we think that you should have the opportunity to choose whether you want those legislative powers conveyed in the step-by-step process or whether you want to wait until the whole process is complete and the powers have been transferred in totality so that nothing can be reversed again. Then we are prepared to go through the farce, the charade of having a referendum to decide whether you go on to what we have already given you".
	I think that is profoundly insulting to the people in Wales. It is an absurd proposition that it is not possible to get agreement on a form of wording that one could fairly put to the people of Wales and that the people of Wales could perfectly understand. What is more, one of the features of a referendum campaign—we have all taken part in them—is that the parties are able to explain in detail exactly what the problem is and put the case, something that was never done when the clause was slipped in on the back of the manifesto. I do not believe many Labour candidates went round their constituencies saying, "I draw your attention to the wording that we have put into our manifesto about what we are going to do in the next Parliament to extend the powers of the Welsh Assembly", nor do I believe they attempted to explain them. They did not elaborate in any way. Indeed, as my noble friend Lord Kingsland pointed out earlier, they had not actually devised this obscure way of doing it when they went to the electorate.
	We are being led up the garden path. I think the people of Wales are being misled. I want the people of Wales to have the choice. If they want to go further, I think they should be allowed to. I think that the proper way to proceed now is to ask them whether they want full legislative powers, and get on and do it, sooner rather than later. I do not think they should wait 10 or 11 years and I do not think the then Secretary of State, whoever it may be—I cannot imagine for one moment that it will be the present Secretary of State, and I hope it will not be—should have the power to take that decision. I think the Welsh Assembly, by a simple majority, should be able to ask for a vote on Part 4. When we get to it, I shall move an amendment in due course. At this stage, however, we ought to have a referendum on Part 3, and not fudge the issue or try to obscure the reality of the situation from the people of Wales.

Lord Thomas of Gresford: I do not see how we can lose a referendum on Part 4 if the noble Lord, Lord Crickhowell, will be campaigning in its favour with the passion that he has expressed tonight. Indeed, if we can now have an undertaking from the Conservative Front Bench that not only will there be a referendum but that they will support Part 4, there would be four parties all campaigning in the same direction with only possibly the BNP being against it.

Lord Crickhowell: The Front Bench of my party in another place has already made it perfectly clear that the choice should lie with the people of Wales: if they want it, the Conservative Party will grant it to them. The noble Lord, who has obscured the issue by trying to dredge back into the nineteenth century, should come back to today, and the commitment that the party has already made.

Lord Thomas of Gresford: I am delighted to hear it. I do not think it is an answer to my point, to say "Well, if they want it, we'll accept it". What we want to know from the Front Bench of the Conservative Party is whether they will campaign for it. If all the political parties in Wales campaign for Part 4 now—because we all see the logic of it—then we can get rid of Part 3 straight away.
	Let us think for moment about what the problem is. Why do the Welsh Assembly Government seek to extend their powers? Because every year since they were formed, they put in a bid for five or six Bills which they obviously think necessary to carry out their policy. That is so whether it is a coalition with the Liberal Democrats, or Labour in government on their own. Each year, they have been allowed one or two Bills to go through both Houses of Parliament. That is the problem. Part 3 is, or should be, a short-term solution to that problem, by making it unnecessary for the Welsh Government to come to Westminster and bid for parliamentary time for a full Bill. We have, in fact, put forward some excellent legislation: the Children's Commissioner, the Commissioner for Older People, the Transport Bill and so on. They have been effective measures.

Lord Roberts of Conwy: Will the noble Lord allow me to remind him of the Commissioner for Older People (Wales) Bill? We had the Second Reading shortly after the election and had to wait for around 18 weeks for a Committee stage. We were ready: there was no problem with the legislation here, but there was elsewhere.

Lord Thomas of Gresford: Yes, there are problems with the parliamentary timetable. The noble Lord makes my point. That was only one of two Bills which got into the legislative programme for that year. That is not satisfactory. For the Assembly to prove its worth, it must have the tools to carry out its policies. It looks at various issues very carefully through the committee system, which we have all approved of, and brings forward sensible measures, some of which get through, and some of which do not. This is a way immediately to give the Assembly a chance to prove itself. The more it proves itself, the greater are the chances of a referendum to bring in Part 4 being successful. The quicker that happens, the more chances there will be.
	While the noble Lord, Lord Roberts, is asking for a referendum about commencement of Assembly measures provisions, it is just too early. It does not solve the problem that we face. The Assembly measures provisions will bring about a form of primary legislation—I have already conceded that to the noble Lord, Lord Kingsland—but that is a step in the right direction. Let us welcome it together and build in the next five years towards bringing in Part 4. I have criticisms of the mechanisms which I shall pursue in later amendments. I hope that your Lordships will hear about them in due course. For the moment, I regret that we cannot support this amendment.

Lord Davies of Oldham: There is a certain air of déjà vu about this debate because we rehearsed most of these arguments when we discussed Amendment No. 54. I certainly do not have a great deal to add to the response that I gave at that stage, particularly as anything that I would have sought to present at the Dispatch Box has already been delivered by my noble friend Lord Rowlands, who indicated the difference between Part 3 and Part 4. I heard what the noble Lord, Lord Crickhowell, said about where a referendum could fit in, but, unfortunately, this amendment tells us exactly where this referendum is meant to fit in. Subsection (2) of the new clause makes it quite clear that the referendum is about Part 3 and the Assembly measures.
	My noble friend Lord Rowlands ventured the hypothesis that it might be difficult to frame the question, but he was too kind to introduce to the debate the information that I somewhat churlishly introduced when we discussed Amendment No. 54; namely, that the opposition Front Bench in the other place had had a shot at it. Let us give them their due. They wanted a question on Part 3; they wanted a referendum, so they had a shot at it. We all know the reputation of the shadow Attorney-General. We all admire a great deal of the work which he does and will continue to do in opposition. He triedby asking whether,
	"do people wish to be governed by Order in Council moderated in its detail by the Welsh Assembly".—[Official Report, Commons, 9/1/06; col. 119.]
	That was a good, honest try, but it was absolute rubbish in terms of anybody being able to run a referendum on such a proposition. Here rests the difficulty, which is at the heart of this amendment. At its heart is a requirement for the people of Wales to reach in a referendum a judgment on this part of the Bill. We will get to Part 4 in due course, and I have no doubt that the noble Lord, Lord Crickhowell, will be as eloquent then as he has been today, but his eloquence is misplaced in the context of this amendment, which requires a referendum which none of us could possibly conceive as being a realistic proposition to put before the Welsh people. I hope that the noble Lord will recognise that the amendment needs to be withdrawn on that basis.

Lord Norton of Louth: Is the Minister saying that one could not draft a simple referendum question, or is he saying that the Welsh people could not understand the basic provisions of Part 3?

Lord Davies of Oldham: We all ought to consider very carefully the questions that are advanced in referendums—noble Lords have had great experience of this. After all, I imagine that Conservative Party's opposition in recent years has been expressed in terms of referendums which have been carried out other than by democratic bodies and by state authorities which have used referendums by devising questions which rig the result. The nature of the question is crucial for the response. The referendum has to be fair. That is why we invest in the Electoral Commission a great deal of responsibility and why we recognise that to put a referendum before people is a very serious issue. If the noble Lord wishes to advance the cause of his own side rather than simply to put probing questions to me—after all, it is its amendment that I imagine he is here to defend—he could perhaps identify the nature of the question which could be asked under this amendment, which would make sense to the Welsh people, which would get past the Electoral Commission in terms of fairness, and on which a referendum could be launched.
	We do not think that that can be done because the powers that will have been advanced under Part 3 could not be readily and easily put into a package that makes sense to the Welsh people until a considerable amount of devolution had occurred. That is why we do not think that a referendum could be put at this point. But the noble Lord's party does, and he could be of great assistance to it. It has not produced convincing arguments thus far and that is why I am resisting the amendment.

Lord Norton of Louth: Surely it is fairly simple and one can come up with straightforward wording. I have just jotted one down now. It is simple to ask the Welsh people whether they want to "bring into effect the law-making powers under Part 3 of the Act". It is then a separate exercise to explain what those powers are, which is the Government's responsibility.

Lord Thomas of Gresford: Should not the question be, "Do you want the same powers as Scotland or halfway?". I know where my money would be on that question.

Lord Davies of Oldham: We can all play games with this at this stage. The noble Lord's approach is rather more populist than the more sophisticated one of the noble Lord, Lord Norton. It seems to the Government that it is exceedingly difficult to identify with clarity the nature and basis of the referendum. It is for the Opposition to prove their case because their amendment contains this requirement. The Government's position is that the amendment should be withdrawn because the case is not established.

Lord Roberts of Conwy: I am absolutely astonished by the debate that we have just had and by the camouflage thrown up by all this discussion of the actual question. Noble Lords have forgotten that I said in moving this amendment that it was drawn verbatim from Clause 102, which provides for a referendum on the introduction of Part 4. There is exactly the same number of subsections in my amendment—eight in all—as there are in Clause 102. Further to what the noble Lord, Lord Rowlands, said about the detail that I provided by numbering the subsections, I draw his attention to Clause 102(8), which gives the sections that are meant by "the Assembly Act provisions" referred to in that clause.
	There is avoidance of the key issue of whether there should be a referendum. That is what should lie at the heart of our debate. But everybody seeks to avoid that issue of principle. The Government accept that there must be a referendum for the implementation of Part 4. So what is so ridiculous about the proposal for a referendum on the introduction of Part 3, which, in principle, provides the Assembly with primary legislative powers? It is only a matter of how much primary legislative power is given to the Assembly in Part 3 and the full power in Part 4. That is what we are talking about.
	My noble friend Lord Crickhowell explained the political background—we had hints about it—to Part 3, which is, let us face it, a device. That word has been used by Members opposite. I agree with my noble friend that the people of Wales are being seriously misled. That is why we feel so strongly that there should be a referendum so that they can have their say. We know that the Secretary of State believes that he would not win a referendum. But that is a matter of opinion. The fact of the matter is that it is our belief and, indeed, the Government's belief that before full primary legislative powers are granted to the Assembly there should be an approval by a referendum. We believe further that it would be unwise to embark on that process, as we are doing in Part 3, without a referendum.
	I go back to our previous debate and remind the noble Lord, Lord Thomas of Gresford, that the amendments moved by my noble friend Lord Kingsland at the beginning of our discussion on Part 3 were intended to eliminate the whole of Part 3; in which case there would be no call for a referendum for the implementation of that part of the Bill and we would move directly to Part 4. The noble Lord will have taken note that while we objected to every clause standing part in Part 3, we have no such similar objections to Part 4. That is the ultimate proof that we accept the basic tenets of Part 4. It is still very much our view that should we get rid of Part 3 and then embrace Part 4. That, as my noble friend Lord Crickhowell said, has been made abundantly clear in the other place as well.
	I am very dissatisfied with the response to our call for a referendum on Part 3. We may return to this matter when the House and people outside have had more time to consider it. For the time being, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Evans of Temple Guiting: I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.
	House resumed.
	House adjourned at three minutes past ten o'clock.